UMASS/AMHERST 


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LIBRARY 

OF  THE 

''^^-'  ' 

MASSACHUSETTS 

AGRICULTURAL 

COLLEGE 

73 

5m.i2.'29.  ^  B27                  I880-IS93 

V  •! 

DATE  DUE 

UNIVERSITY    LIBRARY 


UNIVERSITY  OF  MASSACHUSETTS 

AT 

AMHERST 


H' 


PUBLICATIONS 

OF  THE 

Massachusetts  Society  for  Promoting  Agriculture. 


Massachusetts  Farm  Law: 

A  MONOGRAPH 

ON 

THE  LEGAL  RIGHTS  AND  LIABILITIES 

OF  FARMERS. 

CONTAINING  ABTICLBS   UPON  SUCH  SUBJECTS  AS  THB  FOLLOWING: 


How  to  Buy  a  Farm;    How  Far  the  Farm  Extends;    What  a  Deed  of  a  Farm 
Includes;    Hiring  Help;    Rights  in  the  Road;    Ways  over  the  Farm; 
As  to  Farm  Fences;  Impounding  Cattle;  Farmer's  Liability 
for  his  Animals;  Dogs;  Liability  for  his  Men;  About 
Fires;  Water  Rights,  Drainage  and  Ice;  Trespass- 
ing on  the  Farm;  Exempt  Property; 
Overhanging  Trees 


TKlitb  fllu0trattons  anD   Citations  from  ®tbct  States, 


EDMUND  H.  BENNETT  and  SAMUEL  C.BENNETT. 


SALEM,  MASS.: 

0B8EBVEB  BOOK  AND  JOB  PBINT. 
1893. 


PUBLISHER'S  PREFACE. 


The  substance  of  the  following  pages  was  origi- 
nally delivered  by  Edmund  H.  Bennett  as  a  lecture 
before  the  Massachusetts  State  Board  of  Agricul- 
ture, at  Hingham,  Massachusetts,  December  5, 
1878.  The  lecturer  was  at  that  time  a  member  of 
the  Board.  And  the  circumstances  under  which 
the  lecture  was  first  delivered  may  account  for  the 
use  of  a  familiar  style.  Agricultural  and  other 
journals  throughout  the  country  have  reprinted  it, 
and  it  has  been  cited  in  the  opinions  of  the  courts. 
In  the  present  revision  of  the  lecture  some  new 
matter  and  authorities  have  been  added,  and  some 
slight  changes  made. 

The  Massachusetts  Society  for  Promoting  Agri- 
culture publish  the  present  volume  under  the  title 
of  "  Massachusetts  Farm  Law." 

May,   1893. 


CONTENTS. 

CHAPTER  I. 

HOW  TO  BUT  A  FARM, 9 

CHAPTER  II. 

HOW  FAK  THE  FARM  EXTENDS,        ....       13 

CHAPTER  III. 

WHAT  A  DEED  OF  A  FARM  INCLUDES,         ....  18 

CHAPTER  IV. 

HIRING    HELP,  23 

CHAPTER  V. 

RIGHTS  IN  THE  ROAD,  ......  28 

CHAPTER  VI. 

WATS  OVER  THE  FARM, 31 

CHAPTER  VII. 

RAILROADS  THROUGH  FARMS, 34 

CHAPTER  VIII. 

AS  TO  FARM  FENCES,  39 

CHAPTER  IX. 

IMPOUNDING  CATTLE, 46 


8  CONTENTS. 

CHAPTER  X. 
farmer's  animals, 49 

CHAPTER  XL 

ABOUT  DOGS, 54 

CHAPTER  XII. 

LIABILITY  FOR  HIS  MEN, 59 

CHAPTER  XIII. 

ABOUT  FIRES, 62 

CHAPTER  XIV. 

WATER  RIGHTS,  DRAINAGE  AND  ICE,     ....  64 

CHAPTER  XV. 

TRESPASSING  ON  THE  FARM,  .....  69 

CHAPTER  XVI. 

OVERHANGING  TREES, 76 

CHAPTER  XVII. 

PROPERTr  EXEMPT  FOR  DEBT,  .....  77 

CHAPTER  XVIII. 

BEWARE  OF  TRAPS, 80 


CHAPTER  I. 

HOW  TO  BUY  A  FARM. 

In  an  article  upon  the  legal  rights  and  duties  of 
farmers,  the  first  inquiry  naturally  is,  how  to  buy  a 
farm. 

It  is  quite  generally  known  that  a  mere  oral  bar- 
gain for  a  farm  is  not  binding  in  law  upon  either 
party  ;  but  it  may  not  be  so  well  understood  that  an 
offer  to  sell  a  farm  for  a  given  price,  even  though  it 
be  by  letter  or  other  similar  writing,  is  not  binding 
upon  the  proposer  until  actually  accepted  by  the 
buyer,  and  he  has  also  agreed  to  take  it,  and  pay  the 
price  stated  in  the  offer;  therefore  the  owner  may 
retract  his  offer  to  sell  at  any  time  before  it  is  ac- 
cepted and  he  is  notified  thereof.     And  although,  in  12  Johns.  190. 

^  .  .  =>    '         4  Johns.  235. 

making  his  offer  to  sell,  he  should  expressly  give  you 
a  certain  number  of  days  in  which  to  decide  whether 
to  take  it  or  not,  he  may.  nevertheless,  if  you  have 
not  accepted  in  the  meantime,  change  his  mind  and 
sell  to  another  who  offers  a  higher  price,  even  before 
the  given  time  has  expired  ;  and  you  would  have  no 
legal  redress  for  your  disappointment. 

Nay,  more  ;  although  you  had  fully  made  up  your 
mind  to  take  the  farm,  but  had  not  notified  the  owner 
of  that  fact,  and  should  go  to  great  trouble  and  ex- 
pense in  buying  stock,  tools,  agricultural  implements, 
etc.,  to  carry  on  the  farm,  and  should  even  move 
your    family   there   to   take   possession,    the    owner 


10  FARM   LAW. 

might  even  then  refuse  to  sell,  and  you  would  have 
no  legal  remedy  either  to  compel  him  to  convey,  or 
for  the  expenses  you  had  thus  incurred  relying  upon 

46N.  Y.  467.  his  keeping  his  word.  In  some  states,  although  the 
bargain  for  a  farm  be  oral,  yet  if  the  purchaser  has 
paid  part  of  the  price,  and  has  taken  possession  and 
incurred  expense  in  making  improvements,  a  court  of 

Browne  on  St.  equity  will  compel  the  owner  to  make  a  conveyance, 
aiof'  '^'  ^^  '^^  ought  to  do  without  such  compulsion  ;  but  this 
may  not  be  universally  so,  and  is  always  an  expen- 
sive and  dilatory  remedy ;  the  safer  way  in  such 
cases  is  to  take  a  bond  for  a  deed,  as  it  is  called.  An 
ordinary  "refusal"  of  property,  as  it  is  termed,  is  a 
dangerous  thing  to  rely  upon,  unless  you  are  dealing 
with  a  man  whose  "  word  is  as  good  as  his  bond,'' 
and  they  are  very  scarce  !  And,  if  a  particular  time 
is  given  3'ou  in  which  to  accept  an  offer  to  sell,  you 
should   be   particular   to    signify    your    acceptance 

,„  -nrr  1,  nn.     strlctlv  withiu  thc  tiffic,  and  to  do  so  entirely  uncon- 

17  Wall.  38i.  -^ 

62 Me.  3(!o.      ditiouallv  and  without  any  qualifications,  but  exactlv 
"55.  as  it  was  made.     In  one  instance  a  man  had  ten  days 

in  which  to  make  up  his  mind,  and  on  the  night  of 
the  last  day,  about  half-past  eleven  at  night,  he  called 
at  the  owner's  house,  after  he  was  abed  and  asleep, 
and  said  he  would  take  the  farm.  The  owner  refused 
to  get  up,  or  to  take  the  money  the  next  day,  and  the 
buyer  tried  to  get  the  farm  by  a  suit-at-law  ;  but  it 
was  decided  that  he  came  too  late  on  the  last  day, 
and  he  not  only  lost  his  trade,  but  had  to  pay  the 
26  Miss.  309.  costs  of  his  suit.  In  another  case  A  wrote  to  B  he 
would  sell  him  his  farm  for  three  thousand  dollars 
cash.  B  wrote  back  immediately  he  would  take  it, 
if  A  would  make  out  his  deed  and  send  it  to  a  lawyer 
for  examination,  and,  if  all  right,  the  lawyer  would 
pay  him  his  three  thousand  dollars;  but  it  was 
decided   that   B    had   not   duly    accepted  A's  oifer^ 


HOW   TO   BUY   A   FARM.  H 

because  he  did  not  enclose  the  cash  in  his  letter,  but 
asked  A  to  carry  his  deed  to  a  third  person  for  exam- 
ination, and  consequently  that  A  might  withdraw 
and  sell  to  another  party.  53  Me.  511. 

If  the  negotiations  for  a  farm  are  by  letters,  some 
peculiar  complications  may  arise. 

It  is  generally  understood  that  when  a  man  offers 
to  sell  another  a  farm  by  letter,  the  bargain  is  com- 
pletely closed  the  moment  the  other  deposits  his 
letter  of  acceptance  in  his  post-office,  duly  directed 
to  the  former.  After  that  time  neither  party  is  at 
liberty  to  change  his  mind  or  retract  his  steps.  And 
this  is  said  to  be  so  although  the  letter  miscarries,  or 
the  mail  is  robbed,  and  so  the  seller  never  hears  that^j^  ^^  Y.  441. 
his  proposition  has  been  accepted  at  all.  4E^d1v^216 

If  therefore,  in  such  a  case,  tired  of  waiting  for  a 
reply,  he  should  sell  the  farm  in  good  faith  to 
another,  the  first  party  might  sue  him  for  non-fulfil- 
ment of  his  contract  with  him,  and  perhaps  compel 
him  to  pay  heavy  damages.  Whereas,  if  he  should 
refuse  to  convey  the  farm  to  the  second  purchaser, 
after  he  had  learned  that  the  first  wished  to  claim  it, 
the  last  might  also  bring  suit,  and  so  the  poor  man  is 
literally  "  between  two  fires."  This  seems  very 
strange,  but  I  fear  such  is  the  generally  established 
rule.  As  the  lawyers  say,  ita  lex  scripla  est.  If  it 
be  so,  it  is,  like  some  other  things  written,  "  hard  to 
be  understood  !  "  If  that  law  applies  to  all  kinds  of 
contracts  I  suppose  if  a  young  farmer  sends  a  note 
to  his  best  girl,  offering  to  marry  her,  and  she  in- 
stantly replies  "  Yes,"  but  the  sweet  note  is  lost  in 
the  mail  and  never  reaches  the  party  intended,  and 
tired  of  waiting,  he  marries  the  second  best,  the  first 
one  might  come  down  on  him  for  breach  of  promise. 
Another  singular  situation  might  arise  from  the  prin- 
ciple  above   stated.     Suppose   the    would-be   buyer 


12  FARM   LAW. 

of  a  farm  changes  his  mind  immediately  after  his 
letter  of  acceptance  has  been  sent  off,  and  telegraphs 
the  owner  that  he  declines  to  take  the  farm,  and  then 
his  letter  of  acceptance  arrives  the  next  day,  what 
then, — can  the  owner  hold  him  to  take  it  ? 

But,  supposing  the  grantor  is  willing  to  give  you  a 
deed,  it  must,  in  many  states,  have  the  seal  of  the 
grantor  attached,  or  it  is  not  sutficient.  A  scroll  of 
the  pen,  or  the  letters  L.  S.,  are  sufficient  in  some 
states,  but  it  is  always  safe  to  have  a  seal.  It  may 
not  be  as  well  understood  that  it  is  not  everywhere 
12  Met  157  necessary  that  a  deed  should  be  witnessed  or  ac- 
6  Pet.  136.       knowledgjed,  and  recorded.    These  last  two  requisites 

66  Me.  226.  ^  .  ,  .  ,  . 

may  be  essential  to  make  the  deed  valid  against  the 
creditors  of  the  grantor,  or  any  one  who  subsequently 
bought  the  farm  without  knowing  of  the  prior  deed ; 
and  they  are  always  so  important  the}^  should  never 
be  neglected  ;  and  my  first  advice  to  you  is,  that,  if 
you  have  any  unrecorded  deeds  among  your  papers, 
you  attend  to  that  duty  forthwith. 


CHAPTER  II. 

HOW  FAR  THE  FARM  EXTENDS. 

Having  once  obtained  a  sufficient  deed,  the  next 
question  seems  to  be  how  far  the  farm  extends,  or  its 
projjer  boundaries.  Three  circumstances  have  more 
or  less  weight  in  determining  this  question  : 

1.  The  number  of  acres  stated  in  the  deed  ; 

2.  The  length  of  the  boundary  lines  running 
around  the  farm  ; 

3.  The  visible  monuments,  such  as  trees,  rocks, 
stake  and  stones,  described  as  corners  of  the  farm. 

Of  these  three,  the  last  is  by  far  the  most  impor- 
tant, and,  in  case  of  any  difference  between  them, 
controls  all  the  rest.  If  the  boundary  lines  are 
described  as  beginning  at  a  certain  stake  and  stones, 
thence  to  a  certain  tree,  thence  to  a  particular  rock 
or  stump,  and  so  quite  around  the  farm,  the  deed  in- 
cludes all  the  land  inside  of  those  monuments,  all  of  p„J^^'"^-*J^- 

'  2  Story,  278. 

which  can  be  identified,  although  it  may  be  many  29  ind. 574. 
more  acres  than  the  deed  calls  it,  and,  on  the  other 
hand,  it  will  really  convey  no  more,  although  the 
number  of  acres  within  such  bounds  be  much  less 
than  stated  in  the  deed.  So,  if  the  monuments 
named  are  fixed  and  definite,  they  control  the  length 
of  the  side-lines  mentioned  in  the  deed  :  and  if  these 
lines  be  called  a  hundred  feet  long  on  every  side, 
but  the  trees,  rocks,  stake  and  stones  described  as 
corners,  are  only  ninety  feet  apart,  the  buyer  will 
acquire  a  lot  only  ninet}"  feet  square,  and  not  a  hun- 


14 


FARM   LAW. 


6  Mass.  13. 
2  N.  H.  303. 
8  Wend.  190. 


19  Pick.  387. 
2  N.  H.  287. 
5  Mass.  355. 


27  Gratt.  721, 


2  Johns.  37. 


102  Mass.  217, 
Allen,  212. 


9  N.  Y.  183. 


2  Allen,  212. 
5  Allen,  324. 
8  Allen,  324. 
102  Mass.  217. 
63  Me.  12. 


dred  feet ;  and,  vice  versa,  if  the  lines  are  depcribed 
as  only  ninety  feet  long,  but  the  given  corners  are  a 
hundred  feet  fiom  each  other,  the  deed  covers  a  lot 
a  hundred  feet  square. 

The  quantity  of  acres  mentioned  is  the  very  weak- 
est means  of  knowing  the  real  extent  of  the  farm, 
although  they  be  stated  positively,  and  not  under 
the  elastic  phrase  of  "'  more  or  less,"  as  is  so  com- 
monly done ;  and,  generally  speaking,  a  deficiency  in 
number  of  acres  gives  ^the  buyer  no  remedy  against 
the  seller  for  a  return  of  any  part  of  the  purchase 
money,  unless,  perhaps,  when  it  was  clearly  bought 
at  the  rate  of  so  much  per  acre.  In  one  case  the 
bargain  was  for  a  well  defined  tract,  followed  by  the 
words  "  containing  600  acres."  In  fact  it  contained 
only  421  acres,  but  the  buyer  had  no  redress  for  the 
difference.  So  much  more  important  are  the  known 
monuments  and  boundaries  than  the  number  of  acres 
stated,  that,  even  if  the  vendor  fraudulently  and  in- 
tentionally overstates  the  quantity,  in  order  to  de- 
ceive the  purchaser,  the  latter  has  no  redress,  if  so 
be  the  other  truly  pointed  out  the  boundaries  in  mak- 
ing the  trade ;  whereas  a  fraudulent  statement  of  the 
boundaries  would  release  the  purchaser  from  the  sale, 
although  the  farm  contained  as  many,  or  even  more 
acres,  than  the  parties  called  it  in  making  the  bar- 
gain. 

And,  while  speaking  of  fraudulent  statements, 
perhaps  I  ought  to  warn  you  that  fraudulent  misrep- 
resentations by  the  seller  of  a  farm,  as  to  how  much 
hay  or  wood  it  will  cut,  how  much  stock  it  will 
keep,  how  much  it  had  cost,  or  how  much  somebody 
else  had  offered  for  it,  though  made  with  intention 
to  deceive  you  into  a  foolish  trade,  are  not  in  law 
sufficient  to  excuse  you  from  the  purchase,  or  give 
you  2inj  redress,  when  you  find  out  the  deception. 


HOW  FAR  THE  FARM  EXTENDS.  15 

Such  and  other  similar  statements  are  considered  in 
law  merely  as  "dealer's  talk,"  which,  though  not  to 
be  commended  in  the  code  of  morals,  the  law  takes ^P.'V?^^'?SoI^' 

'  _  5()  N.  Y.  83. 

little  or  no  notice  of.  On  the  other  hand,  if  he 
should  falsely  state  that  the  farm  Jiad  cut  fifty  tons 
of  hay,  when  he  knew  it  had  not,  his  deception 
would   make   him   liable  ;   and    the   line   is  so  thin  ^,9  ^®4t?^1;. 

'  40  N.  H.  51*. 

between  actionable  fraud  and  the  contrary,  that  ex- 
periments in  that  direction  are  rather  dangerous.  It 
is  not  wholesome  to  always  dwell  in  the  twilight. 

If  a  boundary  line  runs  to  a  tree,  rock,  stump  or 
other  similar  natural  object,  it  ordinarily  goes  to  the 
center  of  the  object ;  if  it  runs  by  a  wall  or  fence,  it  is  Alien,  i46. 
passes  along  the  middle  of  it,  and  not  by  the  side, 
which,  in  a  "  Virginia  fence  "  might  be  of  some  con-4  Gray,  220. 
sequence.  That  such  a  fence,  six  or  seven  feet  wide, 
is  a  lawful  fence,  see  Ferris  v.  Van  Buskirk,  18 
Barb.  497. 

So   if  the  farm  bounds  by  or  on  a  brook,  river, 
stream,  etc.,  it  usually  extends  to  the  middle  of  the  16 Me. 245, 357 
current;  not  always  to  the  middle  of  the  tvater^  butecow. 5i8. 
generally  to  the  thread  of  the  stream, — adfilum  aqua.  153  iv^ss^fys. 
If  there  be  any  islands  between  that  center  line  and 
the   bank,  they   belong   to   the  owner  of  the  main  ^^  "^'  ^"  ^^• 
bank.     If  an  island  forms  in  the  bed  of  an  unnaviga- 
ble  river,  directly  in  the  channel,  so  as  to  lie  partly 
on  each  side  of  the  original  thread  of  the  river,  such 
island  will  be  divided  between  the  opposite  proprie- 
tors, exactly  upon  the  line  of  the  former  thread  of 
the  stream  at  that  place.  17  Pick.  41. 

Whereas,  if  the  course  of  such  a  river  changes,  and 
cuts  off  a  point  of  land  on  one  side,  thus  making  an 
island,  such  island  still  belongs  to  the  original  pro- 
prietor ;  and  in  such  case,  if  the  old  bed  of  the  river, 
being  gradually  deserted  by  the  current,  fills  up,  and 
new  land  is  formed,  such  newly  formed  land  is  to  be 


16 


FARM  LAW. 


9  Ciish.  544. 


9  Gray,  269. 


7  Allen,  167. 
54  N.  Y.  377. 
9  N.  H.  461. 


9  Conu.  38. 
25  N.  J.  525. 
3  Scam.  510. 


147  Mass.  64. 
105  Mass.  355 

7  Cush.  53. 

8  Me.  85. 
.34  Me.  25. 
36  Me.  313. 
17  N.  H.  526. 
1  R.  I.  lot). 

7  Met.  322. 
136  Mass.  39. 


divided  between  the  opposite  owners,  as  above 
stated,  notwithstanding  the  island  formed  by  the 
"  cut-off"  is  not  divided. 

In  like  manner,  if  a  deed  is  bounded  on  a  mill- 
pond,  reservoir-pond,  or  any  artificial  pond  through 
which  a  perceptible  current  makes  its  way,  the  farmer 
ordinarily  owns  to  the  center  of  the  current ;  on  the 
other  hand,  if  it  be  a  large  natural  pond  or  lake,  the 
line  stops  at  the  low-water  mark  on  the  shore,  and 
does  not  extend  into  the  pond;  the  public  having 
rights  in  such  large  bodies  of  water  as  are  useful  for 
navigation,  boating,  sailing,  and  the  like. 

As  to  farms  bounding  on  the  seashore,  some  differ- 
ent provisions  exist  in  some  states. 

That  strip  of  land  between  high  and  low  water 
mark,  generall}''  termed  "  the  flats,"  is  a  frequent  sub- 
ject of  contention ;  and  the  question  is  often  made  to 
whom  it  belongs,  —whether  to  the  owner  of  the  up- 
land, or  to  the  public.  In  many  states  the  private 
ownership  in  such  farms  extends  only  to  "  highwater 
mark,"  and  the  public  have  rights  in  the  belt 
between  liigh  and  low  water  mark,  so  that  if  sea- 
weed, or  other  such  thing  be  thrown  up  there  by  the 
tide,  any  one  may  take  possession  of  it,  and  he  who 
first  gathers  it  lias  an  absolute  right  to  it.  By  force 
of  a  very  early  law  in  Massachusetts,  and  some  other 
sea-coast  states,  if  a  deed  describes  the  farm  as 
bounding  '•  Iw  the  sea,"  "  by  the  salt  water,"  "  bay, 
harbor,  cove,  creek,  stream,  river,  or  tide-water,"  it 
generally  includes  the  whole  flats  down  to  the  ex- 
Irenie  low-water  mark  (if  not  over  a  hundred  rods), 
including  the  exclusive  right  to  gather  the  sea-weed, 
or  other  such  things  washed  up  thereon  by  the  tide. 
And  no  custom  among  the  people  in  the  neighbor- 
hood to  collect  sea-weed  in  such  places,  is  of  any 
validity    in    law.     On  the  other  hand,  if   the    deed 


now  FAR  THE  FARM  EXTENDS.  17 

bounds  "  by  the  shore,"  "  beach,  strand,  flats,  marsh,  I4i  Mass,  97. 

or  cliff,"  it  extends  only  to  high-water  mark,  and  does 

not  give  any  right  to  the  flats.  iscTra* ^254 

"While  yet  again(such  are  the  niceties  of  the  law), 
if  the  phrase  of  the  deed  is  "  to  the  beach  or  sea," 
"  to  the  6tea-shore,"  "  to  the  sea  or  flats,"  the  grantee 
owns  down  to  low-water  mark,  flats  and  all.     In  view  I  ^"^h.  195. 

'  5  Gray,  328. 

of  such  nice  and  subtle  distinctions  (though  founded 
on  better  reasons  than  are  apparent),  one  is  tempted 
to  exclaim  with  the  Earl  of  Warwick,  in  Shake- 
speare's Henry  VI. :  — 

"  Between  t\YO  hawks,  which  flies  the  higher  pitch ; 
Between  two  clogs,  which  hath  the  deeper  mouth : 
Between  two  horses,  which  doth  bear  him  best; 
Between  two  girls,  whicli  hath  the  merriest  eye ; 
I  have,  perhaps,  some  shallow  spirit  of  judgment, — 
Bxit  in  these  nice  sharp  quillets  of  the  law. 
Good  faith,  I  am  no  wiser  than  a  daw." 


CHAPTER  III. 

WHAT  A  DEED    OF  A  FARM  INCLUDES. 

1 10^^146.         Of   course    every    one  knows   it   conveys  all  the 

43N.  H.  306.  1  11 

1 N.  Y.  669.  fences  and  stone  walls  on  the  farm  ;  but  all  might 
not  think  it  also  included  the  fencing-stuff,  posts, 
rails,  etc.,  which  had  once  been  used  in  the  fence, 

^TT-,,  ....      l^ut  had  been  taken   down  and  piled  up  for  future 

2  Hill,  142.  ^  ^ 

46  ni.  163.      use  again  in  the  same  place.     But  new  fencing  ma- 
te in.  480.      terial,  just  bought,  and  never  attached  to  the  soil, 
2  Scam.  283.    would  not  pass.     So  piles  of  hop  poles  stored  away, 
if  once  used  on  the  land,  have  been  considered  a  part 
^^®™'*"'-^^^"  of  it ;  but  loose  boards  or  scaffold-poles  merely  laid 
across  the  beams  of  the  barn,  and  never  fastened  to 
it,  would  not  be,  and  the  seller  of  the  farm  might 
iLans.  219.     take  them   away.     Standing  trees,    of  course,   also 
pass  as  part  of  the  land  ;  so  do  trees  blown  or  cut 
54  Me.  309.      ^q^^^^  .^^^^d  stin  igft  in  the  woods  where  they  fell,  but 
not  if  cut,   and  corded   up  for  sale  ;  the  wood  has 
14 Ark.  431.     then  become   personal    property.      As   to   standing 
trees,  let  me  say  here,  if  you  wish  to  buy  a  lot  of 
standing  trees  without  buying    the  land,    you   had 
better  make  your  bargain  in  writing,  lest  the  other 
party  change  his  mind  and  refuse  to  let  you  come 
on  his  land  to  cut  them,  which  he  might  do  before 
they  were  cut ;  and  your  only  redress  would  be  to 
15  Gray,  441.  ^^®  ^^^  ^^^  damages,  but  you  would  lose  your  trees. 
iL'^i®°'  ItJ.'  On  the  other  hand  if  you  had  actually  cut  them  or  a 

153  Mass.  390.  -^  -^ 

part  of  them  before  he  notified  you  to  the  contrary, 
you  would  still  have  a  right  to  go  on  to  his  premises 
and  draw  away  the  trees  which    had  been  cut  with- 


WHAT   A   DEED   OF   A   FARM  INCLUDES. 


19 


out  being  liable  as  a  trespasser,  if  you  did  no  unnec- 
essary damage. 

If  there  be  any  manure  in  the  barnyard,  or  in  a 
compost-heap  on  the  field,  ready  for  immediate  use,  y'lf^HTsoa! 
the  buyer  ordinarily,  in  the  absence  of  any  contrary  2  Hiii,W2.^ 
agreement,  takes  that  also  as  belonging  to  the  farm,  <58  Me.  275. 

f  ,  .    ,  ,  ./-     ,  ,       1  11  Conn.  525. 

though  It  might  not  be  so,  ir  the  owner  had  prev- 
iously sold  it  to  some  other  party,  and  had  collected  43  vt.  95. 
it  together  in  a  heap  by  itself,  for  such  au  act  might 
be  a  technical  severance  from  the  soil,  and  so  con- 

-  '      ,  „       fi4Me.  410. 

vert  real  into  personal  estate ;  and  even  a  lessee  01  a  21  Pick.  367. 1 
farm  could  not  take  away  the  manure  made  on  the  15  wend.  m 
place  while  he  was  in  occupation.     Growing  crops  ^^  ^'^jj^^^fg. 
also  pass  by  the  deed  of  a  farm,  unless  they  are  ex-  ^^  ^p|^n^*"gt 
presslv  reserved  :  and,    when  it  is   not  intended  to    262. 

,  .       ,         /i    1  1    •         ,         1        1   •      7  Watts,  378. 

convey  those,  it  should  be  so  stated  m  the  deed  it-os  in.  106. 
self:  a  mere  oral  agreement  to  that  effect  would  not " 
be,  in  most  states,  valid  in  law.     Another  mode  is  to  f^  %^^^,  278. 
stipulate  that  possession  is  not    to   be   given    untilg,^^- ^•^'^^• 
some  future  day,  in  which  case  the  crops  or  manure  '^^  ill-  *<''''• 

V,     .•  .  •  5Eng.  9. 

may  be  removed  beiore  that  time. 

Farmers  frequently  reserve,  when  selling  a  farm, 
or  lot,  the  right  to  remove  the  wood,  stone,  or  timber 
within  a  certain  stated  time.  The  question  often 
arises  whether  the  same  is  forfeited,  if  not  removed 
within  the  time  allowed,  or  whether  they  may  be  law- 
fully taken  away  afterwards.  Apparently  this  de- 
pends much  upon  the  peculiar  language  used  in  the 
reserving  clause.  In  ordinary  cases  areservatiou  of  a ']'3'^^e.^22. 
mere   right  to  cut  and   carry  awav  trees   within  a'i^^J^-^^-^ 

"  _  "  2Keyes,  .y23. 

stated  time,  expires  in  that  time  and  removing  after- ^  Sandf.  Ch. 
wards  would  be  a    trespass.     While   undoubtedly  a  2  Barb.  622. 
reservation  may  be  so  worded,  as  to  retain  an  abso- 
lute and  indefeasible  title  to  the  things  reserved,  for- 
ever;  and  the  permission  to  remove  may  be  put  in  the 
form  of  a  stipulation  merely,  a  breach  of  which  by  re- 


20  FARM   LAW. 

moving  after  that  period,  might  render  the  party 
liable  to  some  inconsiderable  amount  of  damages. but 
i2Vroom,  203.  the  propei  ty  itself  would  not  be  wholly  forfeited. 
But  this  distinction  is  very  nice,  and  to  safely  secure 
the  perpetual  right,  requires  as  wise  a  pilot  as  to 
steer  between  Scylla  and  Charybdis.  Don't  employ 
a  bungling  justice  of  the  peace  to  write  that  deed  ! 

As  to  the  buildings  on  the  farm,  though  generally 
mentioned  in  the  deed,  it  is  not  absolutely  necessary 
they  should  be.     A  deed  of  land  ordinarily  carries  all 

9  Conn  374     ^^®  buildings  on  it  belonging  to  the  grantor,  wheth- 

er mentioned  or  not ;  and  this  rule  includes  the  lum- 
ber and  timber  of  any  old  building  which  has  been 
so'Pemi^^lt  ^^^^^  down,  or  blown  down,  and  been  packed  away 
185.  for  future  use  on  the  farm. 

23La.An.284.       -r,         t     i  i 

But  if  there  be  any  temporary  buildings  on   the 

farm  built  by  some  third  person,  with  the  farmer's 

consent  that  they  should  belong  to  the  builder,  as 

between  the  parties  these  remain  the  builder's  per- 

6  Greeni.  452  sonal  property;  and  some  think  the  deed  would  not 

38  N.  H.431.  ^       jr        ./   ' 

14  Allen,  124.  couvcy  thesc  to  a  third  person,  since  such  buildings 

121  Mass  559. 

'are  personal  property  and  do  not  really  belong  to 
the  land-owner  to  convey.  If  that  be  so,  the  real 
owner  thereof  might  move  them  off,  although  the 
purchaser  of  the  farm  supposed  he  was  buying  and 
paying  for  all  the  buildings  on  it.  His  only  remedy 
in  such  case  would  be  against  the  party  selling  the 
L*^*i™^*^o^*"  premises.     But  some  courts  decide  that   the  honest 

10  Me.  429.       ^ 

buyer  of  the  farm  would  take  all  the  buildings  on  it, 
161  Mass.  560.  and  if  they  did  not  iustly  belonor  to  the  seller,  the 

127  Mass.  542.  .t  j  o 

128  Mass.  real  owner  must  sue  him  for  wrongfully  selling  prop- 
51  Me.  160."  erty  not  his  own.  As  part  of  the  buildings  con- 
veyed, of  course  the  window-blinds  are  included, 
even  if  they  be  at  the  time  taken  off  and  carried  to 
a  painter's  shop  to  be  painted :  it  would  be  otherwise 
if  they  had  been  newly  purchased  and  brought  into 


WHAT    A    DEED    OF   A    FARM   INCLUDES.  21 

the  house,  but  not  yet  attached  or  fitted  to  it.  Light- ^^o  ^'^t-  233. 
niiig-rods  also  go  with  the  house,  if  a  farmer  is  fool- 
ish enough  to  be  overcome  by  those  smooth  tongued 
lightning-rod  agents. 

A  brick  furnace  in  the  cellar  is  considered  a  part^j,,  j^  Smitii 
of  the  house  ;  and  in  Massachusetts  this  rule  applies  ^'^J^-  „„. 

^  ^  75  111.  38o. 

to  portable  furnaces,  but  this  may  not  be  everywhere  i4i  Mass.  557. 
so.     An  ordinary  stove,  with  a  loose  pipe  running  39  Conn.  362. 

.  .  127  Mass.  125 

into  the  chimney,  is  not;  while  a  range  or  grate  set 2i Wemi!  191! 

in  brick-work  is.     Mantel-pieces  so  attached  to  the  7  ^x^ss.  432. 

chimney  as  not  to  be  removed  without  marring  the  :)'y^-^^^^^- 

plastering,  go  with  the  house  ;  but,  if  merely  resting 

on  brackets,  they  may  be  taken  away  by  the  former 

owner  without  legal  liability.       lam  inclined  to  be- ^^^  ^^'^■'^®- ^^'*'- 

lieve  that  a  deed  of  a  house  does  not  include  the  sfas- 1-7  Mas;^.  125. 

n  ^  ■  ■,  ■      ■  ^^  i  n       f         79    Penn.    St. 

nxtures  therein,  and  it  is  generally  understood,  that,    403. 

./.I  ,.      •        I  •  n     .  1  10  Rich.  135. 

11  a  lessee  puts  in  his  own  gas-nxtures,  he  may  re- 40  Mo.  yi. 
move   them    when  his   lease    expires.     The    pumps,  iqs  Mass.  193. 
sinks,  etc.,  fastened  to  the  building,  are  a  part  of  it  ^  ^'^®''' ^*'"^' 
in  law,  and  so  are  the  water-pipes  connected  there- ^9  Mass.  457. 
with  bringing  water  from  a  distant  spring.     A  wood- 97  Mass.  133. 
en  cistern  in  the  cellar,  standing  on  blocks  of  wood, 
probably  falls  within  the  same  rule.     If  the  farmer  40  Me.  310. 
has  iron   kettles    set  in  brick- work,  near    his  barn, 
for  cooking  food  for  his  stock,  or  other  similar  uses, 
the  deed  of  his  farm  covers  them  also,  as  likewise  a 
bell  attached  to  his  barn,  to  call  his  men  to  dinner,  ^g  p^^j^  3x4 
A    cider-mill   goes  with  the  apple-orchard,  and  not  ^^^^^^^^^'^•g^^*- 
with  last  years'  crop  of  apples.     If  he  has  a  cattle-  ,^  ^-  „  .„, 

,         41  N.  H.  o04. 

barn  on  the  premises,  the  tie-up  planks,  stanchion- 
timbers,  tie-chains,  and  hinge-hooks  used  for  fasten- 
ing the  animals  in  their  stalls,  belong  to  the  barn,  and 
not  to  the  cattle.  If  the  farmer  indulges  in  orna- 
mental statues,  vases,  etc.,  permanently  erected,  and 
resting  on  the  ground  by  their  own  weight  merely, 
and  sells  his  estate  without  reservation,  these  things 


22  FARM   LAW. 

12  N.  Y.  170.  go  with  the  land.     But  even  this  might  not  be  so,  if 
the  article  had  just  arrived,  and  never  been  placed 

17N.H.  282.  or  fitted  to  its  position  on  the  lawn. 

The  same  rules  apply  to  mortgages  of  a  farm  as  to 
absolute  deeds  of  it ;  with  one  additional  important 
consideration,  viz.,  any  additions  or  permanent  im- 
provements upon  the  land  after  the  mortgage  is  given, 
belong  to  the  land,  and  go  with  it,  so  that  if  the 
farmer,  after  mortgaging  his  farm,  erects  a  new  barn, 
or  other  out-buildings,  but  fails  to  pay  the  mortgage 
debt,  and  the  mortgagee  forecloses,  the  owner  will 
lose  the  whole,  new  and  old,  though  it  be  twice  the 
value  of  the  whole  mortgage  debt. 


CHAPTER  IV. 

HIRING     HELP. 

After  taking  possession  of  the  farm,  one  of  the 
first,  and  often  one  of  the  most  trying  duties  of  the 
farmer  is  to  hire  his  help.  Every  employer  of  labor 
knows  full  well,  that  if  a  man  is  hired  without  anv 
special  bargain  as  to  the  price,  he  is  entitled  to  the 
current  rate  of  wages  for  such  labor,  and  no  more ; 
but  every  laborer  may  not  be  aware  that  if  he  en- 
gages to  work  "  for  a  year,  "  but  leaves  without  good  g  y^';'^.^^''^''' 
cause  at  the  end  of  eleven  months,  he  is  not,  in  most  ^,9.^'*^" -P^^ 

34  Me.  102. 

States,  legally  entitled  to  any  compensation  for  what  34  Mo.  79. 

19  Pick.  528. 

he  has  done,  but  forfeits  the  whole.     Some  states  li)  vt.  sosf 
however.  New  Hampshire  and  Kansas  for  instance, 'e  n.  H.481. 
allow  the  laborer  to  recover  a  fair  price  for  his  labor  ^^  NeT/  ^ 
in  such  cases,  deducting  any  damages  he  may  have  ^^^^'^^  ^^^• 
caused   his  employer,   by   not  working   out  his  full 
time.     This  view  has  a  strong  smack  of  justice  in  it, 
though  it  does  not  yet  seem  to  have  been  very  gen- 
erally adopted.     But  the  rule  first  stated  generally 
prevails,  whether  the  laborer  has  agreed  to  stay  for 
the  entire  year  at  one  round  sum,  or  for  a  year  at  the 
rate   of  twenty  dollars   a   month  ;    although,  if  the  ||  johns.^337. 
farmer  had  paid  for  each   month's   work  as  it  came 
due,  he  could  not  probably  recover  it  back,   even  if 
the  laborer  afterward  wrongfully  left  him  before  his 
time  was  out.     And,  if  he  has  given  a  note  for  the  17  vt.  355. 
amount  already  earned,  he  must  pay  the  note,  not-^  ^"^^•^^^" 
withstanding  the   subsequent  failure  of   the    other 
part}'  to  work  out  his  full  time.     But  if  nothing  has  29n!y.^375. 


24 


FARM   LAW. 


4  Wend.  605. 
12  Johns.  165 


been  paid,  and  no  note  given,  the  laborer  would  not 
only  forfeit  his  wages,  but  also  would  be  liable  to 
pay  the  employer  for  any  damage  done  him  by  leav- 
ing him  without  help  at  a  critical  time  in  the  year  j 
therefore,  if  he  has  agreed  to  work  a  year  for  twenty 
dollars  a  month,  and  quits  just  before  haying  because 
he  can  get  forty  dollars  at  mowing  for  some  one  else 
and  the  farmer  has  to  pay  that  price  to  get  another 
man  to  supply  bis  place,  he  can  recover  of  the  la- 
borer the  extra  twenty  dollars  a  month  for  the  bal- 
ance of  the  unexpired  engagement,  as  damages 
caused  him  by  such  breaking  of  the  contract ;  and 
the  laborer  could  not  set  off  against  the  claim  of  the 
employer  the  value  of  the  work  he  had  really  done, 
and  not  been  paid  for.  And  this  is  so,  whatever 
specific  thing  you  hire  a  man  to  do.  If  he  engages 
13  Johns.  94.  to  build  you  a  barn  for  five  hundred  dollars,  to  lay 
up  a  hundred  feet  of  stone  wall  for  a  dollar  a  foot, 
or  dig  a  well  twent}^  feet  deep  for  twentj'-five  dollars, 
and  voluntarily  quits  without  good  excuse  when  the 
job  is  half  done,  you  are  not  obliged  to  pay  a  single 
2  Mass  147  ^cnt  for  what  he  did  do  ;  although,  if  he  had  substan. 
11  Gray,  396.  tially  Completed  it  in  good  faith,  he  would  not  lose 
all  his  labor  because,  in  some  minute  particulars,  he 
had  not  finished  it  exactly  according  to  the  precise 
terms  of  the  contract. 

If  a  farm  laborer  so  conducts  himself  as  to  justify 
his  discharge  before  his  time  has  expired,  it  may  be 
he  would  not  forfeit  all  his  wages  (as  when  he  vol- 
untarily quits  without  cause),  but  might  recover 
whatever  his  services  were  really  worth  to  the 
farm  er. 

On  the  other  hand,  if  the  laborer  has  good  cause 
for  leaving,  he  may  do  so,  and  compel  the  employer 
to  pay  for  the  time  he  actually  did  work.  And 
among  the  well-known    excuses   for   leaving  before 


7  Pick.  181. 
9  Allen,  355. 
20  Conn.  312 


31  Vt.  162. 


HIRING   HELP.  25 

the  orisrinal  bargain  is  completed,  are  sickness  of  theii  ]^^°'-**^- 

°  °  ^  25  Conn.  188. 

hired  man,  or  his  physical  inability  to  labor,  or  the22Me.  53i. 

.       20  N.  Y   197. 

prevalence  of  some  dangerous  epidemic  in  the  family  21  wise.  395! 
or  in  the  vicinity,  which  might  render  it  hazardous        *'  ''^  ' 
for  the  man  to  remain  ;  such  as  cholera,  small-pox,  43  Me.  463. 
and  the  like.     Any  improper  treatment  by  the  em- 
ployer, as  scarcity  of  suitable  food,  is  also  deemed 
sufficient  excuse  for  seeking  other  quarters. 

And  even  though  the  laborer  so  misbehaves  him- 
self that  he  is  arrested  and  imprisoned  for  some 
crime,  and  so  is  busy  picking  oakum  for  the  county 
in  the  house  of  correction,  this  is  considered  a  legal 
excuse  for  not  attending  to  his  farm  duties,  and  he 
can  make  the  farmer  pay  for  what  he  did  do  before 
he  involuntarily  went  into  the  public  service.  11  Allen,  201. 

It  has  been  thought  that  merely  harsh  language 
by  the  employer  to  his  employee  would  not  justify 
him  in  leaving  before  his  stipulated  time  was  out.     In  27  vt.  645. 
one  instance  the  farmer  asked  his  hired  man  to  water 
and  feed  the  cattle  one  Sunday  morning.     The  man 
said  he    wouldn't  do  it :  the  employer  told  him  to 
"  go  to   hell,  but  to  mind  and  work  his  time  out 
first."      Instead  of    following    the    directions,    the 
laborer  went  to  a  lawyer's  office  (which  some  people 
think  about  the  same  thing),  and  sued  for  his  wages 
up  to  that  time,  but  was  held  not  entitled  to  any- 
thing.    Had  the  master  required  him  to  do  any  un-  ^  wend.  515. 
necessary  or  unlawful  work  on  a  Sunday,  it  would  ^^  ■'^®- ^^• 
probably  have  been  a  good  excuse  for  his  leaving ; 
but  necessary  farm-work,    such    as  care  of  live  ^^li- 1  Browne*  "9. 
mals,  ma}'^  undoubtedly  be  required  on  Sunday.    And  ^.  j^^^^j  ^^.^ 
any  work  done  on  Sundays,  ordinarily  comes  under 
the  regular  contract,  and  not  as  extra  work.  4Kans  138 

Difficulty  with  another  laborer  is  not  a  good  ex- 
cuse for  leaving  without  permission  ;  but  it  is  always  ^^  y    ^.^ 
a  question  for  the  jury  to  decide  whether  the  man 


26  FARM   LAW. 

14  Gray,  454.  j^as  good  cause  for  leaving,  and  their  sympathies  be- 
ing with  the  person  employed,  they  usually  think  the 
laborer  is  worthy  of  his  hire.  The  cheaper  way  gen- 
erally in  such  cases  is,  if  the  amount  is  not  large,  to 
pay  the  man,  let  him  go,  and  never  hire  him  again. 

What  we  have  before  stated  about  a  forfeiture  of 
wages,  is  founded  upon  the  doctrine  that  the  laborer 
has  made  an  entire  contract  for  a  time  not  exceeding 
one  year,  and  that  he  must  faithfully  fulfill  it,  or  he 
is  entitled  to  no  pay  ;  therefore,  if  for  any  reason 
this  entire  contract  is  not  valid  and  binding  on  the 
laborer,  he  may  disregard  it  entirely,  and  quit  when 
he  likes,  and  still  recover  for  all  the  time  he  did 
work.  For  this  reason,  if  the  bargain  is  to  work  for 
more  than  one  year,  or  even  for  just  a  year,  but  to 
commence  at  some  future  day,  as  a  week  after  mak- 
ing the  bargain,  and  the  contract  is  not  written  down 
and  signed  (which  nobody  ever  thinks  of  doing),  it 
16  Conn* 24(5.  is  not  binding  on  the  laborer,  and  he  can  break  it 
27^1^'  ^isi  from  a  mere  whim,  and  still  make  the  farmer  pay  for 
.  the  time  he  did  work.     In  like  manner,    if  the  la- 

19  Pick.  572.  borer  is  under  twenty-one,  he  is  not  bound  by  his  bar- 
is  Conn.  337.  gain,  but  may  desert  when  he  pleases,  and  recover 
i^Dem?.'375.  "backpay."  And  this  is  so,  although  the  young 
37  vt^647^'  ^^^  appears  to  be  of  age,  or  is  married  and  has  a 
41  N.  H.  346.  family,  or  even  though  he  falsely  stated  he  was  over 
age,  and  able  and  willing  to  make  as  good  a  bargain 

11  Cush.  40.    ^s  i^  ^^^^  ^  century  old. 

10  N.  H.  184.       Laborers  sometimes  make  a  contract  that  if  either 

14  Vt.  447. 

12S.&R.  399.  party  is  dissatisfied,  the  contract  may  be  terminated. 
Under  such  circumstances,  he  may  leave  when  he 
pleases,  whether  he  had  any  good  reason  to  be  dis- 

29  vt.  219.      satisfied  or  not. 

35Vt.  297.  ^  .„  ,  .      1  J  .       , 

But  even  if  you  have  a  nominal  remedy  against  a 
laborer  who  has  left  you  unjustifiably  in  the  midst  of 
his  contract,  this  so  often  proves  practically  worth- 


IIIRINC.    IIELl*.  27 

less,  that  the  law  also  gives  yoii  a  riglit  of  redress 

against  the  person  who  has  enticed  him  away  with 

the  offer  of  better  wages,   or  otherwise.     Of  course 

one  farmer  has  a  right  to  offer  inducements  to  a  hi- 

borer  to  leave  his  present  employer,  when  his  tim  ;  is 

out,  or  if  he  is  only  employed  from  day  to  day,  and 

under  no  legal  obligation  to  remain  longer,  but  en- ^j^  j!f  ^  49, 

ticing  him  away    during    his    contract  for   a   stated 

period  is  quite  another  matter. 

The  law  does  not  allow  one  man  thus  to  interfere 
with  another  man's  business  without  being  liable  to 
pay  for  all  the  inconvenience  and  loss  he  may  there- 
by cause  to  the  person  whose  men  are  thus  induced 
to  break  their  contract   with  their  former  employer.  i07  Mass.  .555. 

*•      •'         oCi  N.  H.  456. 

It  is  for  this  reason  that  combinations  among  work- 15  Barb.  499. 
men  for  a  strike,  and  to  induce  fellow  workmen,  by 
intimidation  or  otherwise,  to  forsake  their  employers, 
are  clearly  illegal,  and  render  the  parties  involved 
liable  both  civilly  and  criminally.     Such  associations  lor.  Mass.  1. 

^.  ^,  p  ,      3  Pitt. sb.  14:3. 

are  more  common    among   operatives  than  farm  la- 
borers ;  but  probably  the  same  rules  apply  to  both. 

A  few  years  since,  in  Nebraska,  a  number  of  la- 
borers conspired  together  to  quit  work  simultane- 
ously, and  return  the  articles  they  were  at  work 
upon,  in  an  unfinished  and  worthless  condition. 
They  did  so,  but  they  were  obliged  to  pay  several 
hundred  dollars  damages  to  their  employer.  9  Neb.  390. 


CHAPTER   V. 


RIGHTS  IN  THE  ROAD. 


143  Mass.  9. 
2  Wall.  68. 
34  Vt.  289. 
37  N.  Y.  251. 

Mass.  G5. 

.  1. 404. 


IN.  H.  16. 
125  Mass.  216, 

43  Me.  322. 
38  Conn.  .50. 

44  Vt.  49. 

1  Cow.  238. 
8  Met.  576. 
8  Allen,  473. 
1  Penn.St.336 


12  Met.  53. 


16  Mass.  33. 


If  a  farm  deed  is  bounded  by,  on,  or  upon  a  road, 
it  usually  extends  to  the  middle  of  the  roadway. 
There  are  a  few  exceptional  cases  ;  but  ordinarily 
the  farmer  owns  the  soil  of  half  the  road,  and  may 
use  the  grass,  trees,  stones,  gravel,  sand,  or  any  thing 
of  value  to  him,  either  on  the  land,  or  beneath  the 
surface,  subject  only  to  the  superior  rights  of  the 
public  to  travel  over  the  road,  and  that  of  the  high- 
way surve3^or,  or  other  similar  officer,  to  use  such 
materials  for  the  repair  of  the  road  ;  and  these  mater- 
ials the  surveyor  may  cart  away,  and  use  elsewhere 
on  the  road,  but  he  has  no  right  to  use  them  for  his 
own  private  purposes.  No  other  man  has  a  right  to 
feed  his  cattle  on  your  half  of  the  road,  or  cut  the 
grass  or  trees  ;  much  less  deposit  his  wood,  old  carts, 
wagons,  or  other  things  thereon  ;  and  after  notice  to 
the  owner,  the  farmer  may  remove  them  to  some  suit- 
able place,  and  if  they  are  lost  or  injured  it  is  not  his 
fault. 

The  owner  of  the  drove  of  cattle  which  stops  to 
feed  in  front  of  your  land,  or  of  a  drove  of  pigs 
which  root  up  the  soil,  is  responsible  to  you  at  law 
as  much  as  if  they  did  the  same  things  inside  the 
fence.  No  person's  children  have  a  legal  right  to 
pick  up  the  apples  under  your  trees,  although  the 
same  stand  wholly  outside  of  the  fence.  No  private 
person  has  a  right  to  cut  or  lop  off  the  limbs  of  your 


RIGHTS   IN   THE   KOAD.  29 

trees  in  order  to  move  his  old  barn  or  other  buildings 

alono-    the  hidiway  ;    and  even  if  the  owner  of  the**^"^^'- ^^i^- 

O  D  .'     7  \)i    Mass.  iJ-i. 

building  has  a  license  from  the  proper  authorities  to 
move  the    same  through  the  streets,  this   does   not 
exempt  him  from  liability  to  private  sufferers.     And 
no  traveler  can  hitch  his  horse  to  your  trees  in  the 
sidewalk,  without  being  liable,  if  he  gnaws  the  bark 
or  otherwise  injures  them  ;  and.  you  may  untie  the 
horse,  and  remove  him  to  some  safe  place.     If  your  54  -^^^  ^q 
well  is  partly  on  your  land,  and  partly  outside  the 
fence,  no  neighbor  can  use  it,  except  by  your  per- 
mission.    Nay,  more  ;  no  man  has  a  right  to  stand  in 
front  of  3^our  laud,  and  whittle  or  deface  your  fence, 
throw  stones  at  your  dog,  or  insult  you  with  abusive 
language,  without  being  liable  to  you  for  trespassing 
on  your  land  ;  he  has  a  right  to  pass  and  repass  in  an  11  Barb. 390. 
orderly   and  becoming  manner, — a  right  to  use  the 
road,  but  not  to  abuse  it. 

One  judge  thought  that  if  a  strolling  musician 
stops  in  front  of  a  house,  and  plays  a  tune,  or  sings 
an  obscene  song  under  the  window,  he  would  be 
liable  as  a  trespasser  on  the  road.     It  ou^ht  to  be  so, ,,  x.    ,    ,..„ 

^  o  '  11  Barb,  393. 

anyway.  In  one  case,  a  man  stopped  in  the  highway, 
in  front  of  a  house,  and  used  vulgar,  obscene  and  pro- 
fane language  in  the  hearing  of  the  inmates  of  the 
house,  and  it  was  decided  that  the  man  of  the  house 
had  a  right  to  put  a  stop  to  such  annoyance,  even  by 
the  use  of  force.  ^q  n  c  351 

Perhaps  it  may  be  well  to  state  here,  that,  if  the 
highway  becomes  suddenly  impassable  by  heavy 
snows  or  deep  gullies,  a  traveler  may  turn  aside  into 
your  adjoining  land,  without  being  liable  as  a  tres- 
passer, if  he  does  no  unnecessary  injury.  But,  not-"  Cush.  408. 
withstanding  the  farmer  owns  the  soil  of  the  road, '' urio"  es.^*^' 
even  he  cannot  use  it  for  any  purpose  which  inter- 
feres with  the  use  of  it  by  the  public  for  travel.     He 


30  FARM  LAW. 

cannot  put  his  pig-pen,  wagons,  wood,  or  other 
things  there,  if  the  highway  surveyor  orders  them 
away,  as  obstructing  public  travel.  If  he  leaves 
such  things  outside  his  fence,  and  within  the  limits 
of  the  highway  as  actually  laid  out  (even  though 
some  distance  from  the  traveled  path),  and  a  trav- 
eler runs  into  them  in  the  night,  and  is  injured,  the 
CoDn.  225.  owner  is  not  only  liable  to  him  for  private  damages, 
but  may  also  be  indicted  and  fined  for  obstructing  a 
public  way.  And,  if  he  have  a  fence  or  wall  along 
the  highway,  he  must  place  it  all  on  his  own  land, 
and  not  half  on  the  road,  as  in  case  of  division 
fences  between  neighbors.  And  such  front  fence 
must  end  on  each  man's  own  line.     One  man  has  not 

4  Gray,  215.  *  right  to  put  the  terminal  post  of  his  front  fence 
partly  on  his  neighbor's  land,  the  same  being  no  part 

iLans.  70  ^f  a  division  fence.  But,  as  he  owns  the  soil,  if  the 
road  is  discontinued,  or  located  elsewhere,  the  land 
reverts  to  him,  and  he  may  enclose  it  to  the  center, 
and  use  it  as  a  part  of  his  farm. 

As  to  shade  and  ornamental  trees  standing  in  the 
'highway,  the  power  and  control  over  them  is  now  by 
statute  largely  vested  in  the  authoriiies  of  the  town 
or  city  ;  and  it  would  not  be  safe  for  the  farmer  to 
remove  or  trim  them  without  permission  from  the 
proper  authority. 


CHAPTER  VI. 

WAYS  OVER  THE  FARM. 

Others  may  acquire  a  right  of  way  over  your 
farm,  in  either  one  of  three  modes  : 

1.  By  purchase  or  grant  from  you. 

2.  By  long-continued  use,  or  prescription. 

3.  By  actual  necessity. 

As  to  the  first  method,  to  gain  a  permanent  right 
by  purchase  or  grant,  it  must  have  been  by  a  regular 
and  complete  deed,  executed  in  the  same  way  as  a 
deed  of  the  land  itself.  If  the  bargain  was  only  oral, 
or  even  if  it  was  in  some  simple  written  paper,  but 
not  in  a  formal  deed  under  seal,  it  would,  even 
thougli  fully  paid  for,  be  in  law  revocable,  —  a  mere 
license  as  it  is  called, — and  might  be  terminated,  at 
the  mere  wish  of  the  land-owner,  by  a  notice  to  the 
other  party  to  use  it  no  longer.  Being  a  hind  of  in- 
terest in  land,  the  strict  law  requires  it  to  be  con- 
veyed by  a  deed.  2  Gray,  302. 

r,        rr,,  T  ,         1  .      .  .2  Allen,  578. 

I.      ihe    second    mode,    by  prescription,  requires 4  R.  i.  47. 
length  of   time, — generally   twenty    years,    but   in^sMe.  257.  * 
some  states,  ouly  fifteen  ;    and  the  way  must  have'^    ^^^  '      ' 
been    used    continuously,    peaceably,   and    under   a 
claim  of  right  to  do  so,  and  not  by  your  permission 
or  consent.     If    it  was  only  very  rarely  used,  if  it 
was  not  peaceably  used,  but  against  your  protest,  or 
if  used  by  your  tacit  consent,  the    use    would   not  8  Gray,  441. 
ripen    into  a    legal  right,  however  long  continued.        ^^^' 
And,  if  used  under  all  those  conditions,  it  must  have 


32  FARM   LAW. 

been  in  some  regular  and  uniform  place.  No  man 
can  gain  a  right  by  such  means  to  wander  over  your 
farm  just  where  he  has  a  mind  to,  or  where  his  con- 
venience suits  him.  That  would  be  an  intolerable 
ifv^'m"     burden  to  the  farmer. 

To  gain  this  right  by  twenty  years'  use,  it  is  not 
necessary  that  any  one  owner  should  have  traveled 

2  Aiieu,  543.   j^  twenty  years.     If  successive  owners  have  unitedly 
19  vt.  1(34.      used  it  for  that  period,  it  would  be  sufficient,  so  far 

3  Day,  258.  ,  ,       ,.    .  .  ,         .      i   -i-     i  • 

31  Conn.  531.  as  length  01  time  is  concerned.  And  it  this  prescrip- 
tive right  of  way  was  gained  only  by  using  it  for 
some  particular  purpose,  as  for  carting  wood  from  a 
wood-lot  beyond,  that  would  not  authorize  the  per- 
son to  continue  to  use  it  for  all  purposes,  after  the 

H.  ^       -.^.^    wood  had  been  all  cut  off,  and  the  lot  covered  over 

11  Gray,  150. 

15  Gray,  387.    with  buildings. 

lCh.Div.362.  *.    -,  -,       T  •.  •  u 

3.  The  third  mode,  by  necessit}^  arises  when  you 
sell  a  man  a  back  lot,  with  no  means  for  him  to  get 
to  any  highway  except  over  your  remaining  land. 
The  law  gives  him  a  right  to  cross  your  land  to  and 

22  N.  Y.  217.  fro  ;  otherwise,  his  land  would  be  useless.     At  pres- 

27  N.  H.  448. 

23  Penn.  St.    ent  he  can't  reach  it  by  balloon  to  any  practicable 
I9"wend.  507.  pui'posc,  and  therefore  he  must  cross  your  land.     So, 

4  Bush,  317.    •£  y^^^  ^^Y[  a  man  all  your  front  land,  retaining  the 

back  part,  and  have  no  way  out  except  over  the  part 

sold,  you  retain  a  right  to  cross  the  lot  sold,  though 

56N.  H.  306.  your  deed  in  such  case  says  nothing  about  it;  and 

ecush.  132.     tWs  is  so,  even  if  in  your  deed  you  warrant  the  land 

i  Gray  297.     ^o  be  free  and  clear  from  all  incumbrances.     It  is  a 

familiar  maxim  that  "  necessity  knows  no  law." 

But  right  of  ways  by  necessity  continue  only  so 
long  as  the  necessity  itself  continues  ;  and  if  a  high- 
way is  afterward  laid  out,  touching  the  back  land  on 
the  other  side,  or  if  the  owner  of  such  back  lot  after- 
ward buys  a  lot  adjoining  it,  and  between  it  and  a 
highway,  he  can  no  longer  cross  over  your  land  as 


WAYS  OVER   THE  FARM.  33 

before,  but  must  go  out  the  other  way.     And  so  lonsr  i-isiNiass  m 

,  .  .  °  l-l  Gray,  126, 

as  he  does  have  such  a  ri2"ht,  he  must  go  in  such  a  is  Cdnn.  321. 

47  M    TT   ^^0 

place  as  you  designate,  if  it  be  a  reasonable  place.  29  Tex.  78. 
If  you  mark  out  a  road  or  a  way  along  the  fence,  or 
on  the  poorer  ground,  he  should  confine  himself  to 
that.  If  you  neglect  to  do  so,  probably  he  may  then" 
locate  his  own  way,  but  must  do  so  in  a  "  reasonable 
manner,"  and  where  it  will  do  you  no  unnecessary 
damage.  He  has  not  a  right  always  to  take  the 
"shortest  cut"  across  your  land,  whatever  it  may 
be.  Neither  has  he  the  right  to  keep  changing  his 
route,  and  so  cut  your  land  all  up  with  his  wheel- 
ruts.  And,  if  the  way  becomes  miry  or  out  of  repair, 
he  must  keep  it  in  good  condition  if  he  wants  to  use 
it.  Your  duty  is  done  when  you  allow  him  to 
cross;  you  are  not  obliged  to  smooth  his  pathway  75  ^'^y' 474 
for  him,  and  rake  out  the  sticks  and  stones.  But  if 
you  actually  obstruct  his  usual  road,  and  perhaps  if 
it  becomes  suddenly  impassable  by  natural  causes, 
he  would  have  a  right  to  deviate  to  one  side  until  he 
has  opportunity  to  remove  the  obstructions  or  make 

8  Pick.  339. 
repairs.  2  Alien,  546. 

All  such  rights  of  way  are  apt  to  be  nuisances  to  . 
the  farmer,  and  not  unfrequently  lead  to  litigation. 

It  is  important  to  know,  that,  in  whatever  mode  a 
right  of  way  is  acquired  over  your  land,  yon  have 
ordinarily  a  right,  in  the  absence  of  any  stipulation 
to  the  contrary,  to  erect  suitable  gates  or  bars  at  the 
entrances  thereto  from  the  highway;  and  if  ^he-J.^^j^^^^^jg^i- 
other  party  leave  them  open,  and  cattle  get  in,  or  ;W  n.  h.  ssp. 
yours  get  out,  he  is  liable  to   you    for  the  damage  1  Lans.  04. 

^  ,  .    ,    ^  *'     47  N.  H.  301. 

which  ensues.  45Ma.  357. 


CHAPTER  VII. 

RAILROADS   THROUGH  FARMS. 

Many  farms,  now-a-days,  especially  in  the  valleys, 
have  one  or  more  railroads  crossing  them ;  and  as 
such  roads  are  not  generally  acceptable  to  the 
farmer,  it  becomes  interesting  to  know  the  legal 
liabilities  and  rights  of  the  company  and  the  land 
owner. 

In  the  first  place,  railroad  companies  do  not  gen- 
erally acquire  the  fee  in  any  land  they  take  by  law 
for  their  road-bed,  but  only  an  easement,  or  right  to 
maintain  their  road  there,  with  all  necessary  inci- 
dental rights  thereto.  If  the  farmer  gives  the  com- 
pany a  deed  of  the  land,  of  course  they  have  the 
same   absolute  ownership   as   any   other    purchaser 

i^N^Y^i"!  "^^^^^^  have.  And  in  some  states  this  may  be  so 
when  the  land  is  seized  and  condemned  by  the  rail- 
road company,  contrary  to  the  will  of  the  owner; 
but  usually  the  fee  of  the  land  remains  in  the  person 
from  whom  it  was  taken.  The  exclusive  rights  of 
property  in  the  land,  and  in  the  trees  and  herbage 

28Vt^87^^"    upon  its  surface,  and  the  minerals  below  it,  belongs 

39  N.  H.  5iM.   to  him,  and  the  company  have  only  a  right  of  way 

42  Aia.(N.s.),  ovcr  the  surface. 

83. 

If  any  stranger,  therefore,  should  take  and  carry 
away  any  such  things  from  the  strip  of  land  taken 
for  the  road,  he  would  be  liable  to  the  adjacent  land 
owner  for  so  doing.  But  owing  to  the  peculiar  char- 
acter of  railways,  and  the  necessity  for  an  exclusive 


RAILROADS   THROUGH   FARMS. 


35 


use  and  occupation  of  the  road  by  the  company,  the 
land  owner  might  not  have,  as  against  the  company, 
a  right  to  enter  ad  libilum,  and  cut  and  carry  away 
what  was  growing  thereon,  or  remove  the  soil,  turf, 

.^  42  Vt.  265. 

6tC.  32  Vt.  43. 

And  of  course  the  company  have  a  right  to  cut  ^  ^•''^y- ^^4. 
down,  and  remove,    any  trees,  buildings,   or   other 
objects  within  their  authorized  location,  which  may 
at  any  time  interfere  with  their  use  and  operation  of 
the  road.  ^^  Cush.  6. 

It  may  seem  singular  that  a  railroad  company,  a 
corporation  organized  only  for  private  profit,  should 
have  a  legal  right  to  take  the  best  of  a  man's  land 
without  his  consent,  and  subject  him  to  the  annoy- 
ances necessarily  incident  to  such  a  use  of  his  prop- 
erty ;  but  it  is  quite  universally  established  that  the 
legislature  have  a  right  to  grant  railroad  companies 
such  powers,  mainly  because,  though  the  direct  ob- 
ject of  the  stockholders  in  building  a  railroad  is 
pecuniary  profit,  yet  being  built,  it  becomes  a  great 
public  highway— artificial  highway — on  which  every 
one  has  a  right  to  travel,  upon  complying  with  the 
terms  and  conditions  sanctioned  by  the  law.  Be-  ^aiiw^ivs^voi 
ing,  however,  a  power  contrary  to  common  right,  it  i,  chap.  XI. 
is  to  be  strictly  construed,  and  not  extended  beyond 
the  necessity  of  the  case  ;  and  railroad  companies  do 
not  have  a  right  to  seize  and  take  all  the  land  they 
may  happen  to  want,  but  only  what  they  actually 
need  for  operating  their  road.  They  would  have  no 
right  to  seize  and  take  possession  of  land  wholly  out- 
side of  their  location,  merely  for  the  purpose  of 
speculation  and  profit. 

In  some  states,  also,  the  land  lawfully  taken  must 
be  actually  paid  for,  before  the  company  has  any 
right  to  even  take  possession  ;  M'hile  in  others,  they 
have   a  right  of  immediate   possession,  leaving  the 


36  FARM  LAW. 

damages  to  be  paid  for  afterward,  as  the  parties  may 
agree,  or  a  legal  tribunal  determine. 

The  ultimate  fee  of  the  road-bed  therefore,  gener- 
ally remaining  in  the  former  owner,  if  the  road  is 
discontinued,  or  the  location  entirely  changed  and 
abandoned,  all  land  taken  by  law  reverts  to  the  for- 
mer owner,  and  he  may  re-occupy  the  same.  And  as 
the  fee  is  all  the  time  in  him,  if  he  sell  a  part  of  his 
farm,  on  one  side  of  a  railroad,  and  bounds  it  by  the 
road,  the  grantee  acquires  a  right  in  the  fee  to  the 
center  of  the  road,  as  in  cases  of  deeds  along  high- 
ways, etc. 

Such  being  the  respective  interests  of  land  owner 
and  railroad  company  in  the  bed  of  the  road,  the  next 
question  is,  as  to  the  fences  along  this  narrow  belt 
of  land.  Obviously,  the  fences  ought  to  be  erected 
and  maintained  by  the  railroad  company,  or  the  land 
owner  ought  to  be  compensated  for  the  expense  of 
doing  so  himself.  Accordingly,  as  the  more  simple 
mode  of  settling  the  question,  it  is  now  generally 
provided  by  statute,  that  railroad  companies  shall  do 
all  the  fencing,  on  both  sides,  and  ever  afterward 
maintain  them.  And  where  that  is  so,  the  company 
is  liable  for  any  injury  to  the  adjoining  owner's  cat- 
Raih^a*^s^voi  *^®  °^  beasts  whicli  stray  on  to  the  road,  through 
I,  ch.  XVIII.  a  defective  fence,  and  are  there  killed  or  injured  by 

8  Barb.358,:!90  .  .  '  .  . 

35  N.  H.,  169,  passing  trains,  whether  there  is,  or  is  not,  any  neg- 

5ind.  111.      Hence  in  running  the  trains. 

But  where  there  is  no  positive  law  requiring  the 
company  to  fence,  the  duty  of  keeping  one's  animals 
off  the  road  is  on  the  owner  of  the  animals,  and  if 

Redfieid  on     ^^^J  stray  upou  the  road,  and  are  injured,  the  com- 

cifa'^^^xvm  P^^^  is  not  liable  unless  guilty  of  negligence  in  run- 

XIX.  ning  the  train. 

And  even  where  the  law  actually  requires  the  rail- 
road company  to  keep  up  the  fences,  that  applies  only 


RAILROADS   THROUGH   FARMS.  37 

to  cattle  belonging  to  the  adjoining  owners,  or  law- 
fully on  their  lands,  by  their  permission.  It  does 
not  apply  to  cattle  of  third  persons  remotely  situ- 
ated, that  have  strayed  away,  and  wandered  on  to 
the  railroad,  and  are  then  killed.  In  such  cases  the 
company  is  not  responsible  for  any  defects  in  their 
own  fence,  but  only  in  case  they  have  negligently 
run  down  the  beasts.  supra.gsMass. 

These  are  the  general  principles  applicable  to  this 
subject,  but  it  is  so  much  controlled  by  local  statutes 
and  decisions,  that  it  would  be  impracticable  and 
confusion  to  discuss  it  further  here. 

Another   important    question    arising   about   rail- 
roads, is    their  liability  for  fires,  communicated  by 
their  passing   locomotives    to   the   woods,    pastures, 
or  buildings  of  farmers  along  the  route.     Primarily, 
a  railroad    company  is    not    liable   for   fires,  unless 
caused  by  some  negligence  or  carelessnesss  of  their 
employes.     Formerly,  and  antecedently  to  any  stat- 
utes, railroad    companies    were  not  liable   for   fires 
caused  by  their  locomotives,  without  proof  of  some 
negligence,  either  in  the  construction    or    mode    of 
running  the  engine,  by  which  the  fire  was  caused,  oris  Barb,  so! 
otherwise.     But  as  the  liability  to  such  fires  was  so  jg  q°^^'  \l^' 
great,  and  the  amount  of  damage  so  caused  was  very^J  j^^' ^fvo 
extensive,  it  became  necessary  to  enlarge  their  liabil- 33  Iowa,  I87. 

'  .  ,  ^       .,  T  (JO  Mo.  227. 

ity;  and  now  in  some  states,  by  statute,  railroad  cor- 4  Neb.  268. 

porations  are  liable  for  all  damages  to  the  buildings 

or  personal  property  of  land-owners  along  their  route, 

arising  from  fire  communicated  by  their  locomotives, 

and  without  any  proof  of  negligence  or  carelessness, 

either  in  the  company  or  any  of  its  employes.     This 

seems  to  be  the  law  in  Massachusetts.  8  Aiienl  438. 

And  this  statute  has  a  very  liberal  construction, 
extending  not  only  to  buildings  immediately  adjoin- 
ing  the  railroads,  and  which  are  fired  directly  by 


38  FARM   LAW. 

sparks  from  the  locomotives,  but  also  to  buildings  at 
a  long  distance  from  the  road,  and  which  are  set  on 
fire  by  sparks  Hying  through  the  air  from  some  build- 
ing nearer  bv,  which  had  first  taken  fire  from  the 

13  Met.  99.        p^o-i.iP 

98  Mass.  414.  engine. 

103  Ma.ss.  586.  As  a  protection  to  themselves,  however,  railroad 
companies  are  authorized  to  get  the  property  along 
the  route  insured  for  their  benefit ;  so  that,  if  obliged 
to  pay,  they  may  remunerate  themselves,  and  thus 
the  burden  is  more  equally  divided.  Different  states 
may  have  different  statutes  upon  this  subject. 


CHAPTER  VIII. 

AS  TO  FARM  FENCES. 

It  was  a  fundamental  principle  of  our  law 
(though  the  contrary  exists  in  many  of  the  United 
States),  that  every  man  must  keep  his  cattle  on  his 
own  land  at  his  peril.  He  was  liable  if  they  strayed 
away  into  other  people's  grounds.  It  was  neces- 
sary, therefore,  at  common  law,  that  every  man 
should  keep  a  personal  watch  over  his  animals,  or 
surround  his  land  with  a  fence.  This  fence  was 
primaril}^,  therefore,  not  to  keep  other  people's  cattle 
out,  but  to  keep  one's  own  in  ;  and  so  any  land- 
owner, if  he  kept  cattle,  was  bound  to  erect  the  en- 
tire fence  around  his  close,  whether  his  neighbor 
kept  any  cattle  or  not ;  and,  if  the  latter  also  owned 
any,  he  must  do  the  same,  or  keep  his  beasts  at 
home  in  some  other  way.       This    was  the  law    inoMass.  9-i. 

29  Me.  282. 

Massachusetts,  Maine,    Vermont,     New  Hampshire,  Ji  vt.  268. 
New  York,  Maryland,  Minnesota,    Indiana,    Michi-j  qq^  7^/ 
gan ;  while  Connecticut,  Pennsylvania,  Ohio,  Iowa,^g^J[^^'^32Q 
Kansas,  West  Virginia,  California,  and  some  others,  i^jp^' ^,^Jo 

'  ^  '  '3  Mich.  163. 

adopt  the  other  rule,  that  the   man  who  cultivates  HCoun.  295. 
his  land  must  keep  other  people's  cattle  off.     And  3  Ohio  St.  179! 
statutes  sometimes  so  declare.  7  Kaiwas,  592. 

But  two  parallel  fences  would  be  attended  '^itli I'T^aL^oOS.^ 
useless  expense;  and,  as  one    and  the    same    fence, „'*'^?\  ,„  „  , 

'■  /  ...  .  10Rich.(S.C.) 

would  answer  for  two  adioininsr  proprietors,   it  was    227. 

1  -1^1  ,    ,    ,       f  •  .     -         42  Geo.  305. 

long  ago  proviaed  by  statute  law,  in  many  states,  22  Tex.  355. 
that  adjoining  owners  of  improved  lands  should  31  Mrsk  152, 
maintain  partition  fences  in   equal   shares ;    and,    if 


40  FARM   LAW. 

they  did  not  agree  how  the  fence  should  be  divided, 
either  might  apply  to  the  fence  viewers,  elected  by 
the  town  every  year,  to  decide  which  part  each  pro- 

Pub.sts.c.36.  pj.jgj.Qj.  should  keep  up.  And  if,  after  such  decision, 
either  party  refused  or  neglected  to  build  or  keep  in 
repair  his  portion,  the  other  could  do  so,  and  recover 
double  the  expenses  of  the  delinquent  owner  by  a 
suit  at  law.  It  follows,  therefore,  that  if  my  adjoin- 
ing owner  does  not  keep  up  his  half  of  the  fence,  and 
my  cattle  get  through  and  injure  his  crops,  he  has  no 
redress  against  me,  since  his  own  neglect  was,  in  part 
at  least,  the  cause  of  his  injury.  But  now  comes  in 
a  very  important  addition  to  this  rule ;  and  this  is,  if 
my  cattle  stray  beyond  the  immediately  adjoiningland, 
into  the  farm  of  a  third  person,  and  there  injure  his 
crops,  I  am  liable  for  the  damage  to  him,  although 
my  own  half  of  my  fence  is  good,  and  my  animals 
escaped  through  my  immediate  neighbor's  defective 
fence ;  because  as  to  all  persons  except  my  nearest 
neighbor,  I  am  still  bound  to  keep  my  cattle  on  my 
own  land ;  and  it  is  no  excuse  for  me,  so  far  as  third 
persons  are  concerned,  that  my  neighbor  neglected 
his  half  of  our  divison  fence.  Whether  my  neighbor 
would  be  liable  to  refund  to  me  what  I  had  to  pay  to 
such  distant  owner,  is  not  yet  settled ;  but  it  is  estab- 
lished that  the  latter  could  not  himself  sue  the 
negligent   land-owner,  but  only   the    owner    of  the 

11  Gray,  489.  Cattle.  Nay,  so  far  is  this  rule  carried,  that  although 
such  third  person  did  not  keep  up  his  own  fence,  and 
the  cattle  go  into  his  land  through  his  own  fault,  he 
can  still  make  me  pay  the  damages ;  because  he  is 
not  bound  in  law  to  keep  up  any  fence  at  all,  except 
as  against  his  nearest  neighbor,  and  not  against  my 
cattle  further  off.  In  other  words,  if  A,  B  and  C 
own  three  adjoining  lots,  and  A's  cattle  stray  into 
B's  land    through   B's   neglect,    he  has   no    remedy 


AS   TO   FARM   FENCES.  41 

against  A;  but  if  they  stray  still  further,  on  the  land 
of  C  also,  and  there  do  mischief,  C  has  a  claim  for  the 
damages  against  A,  even  though  the  animals  went 
through  his  own  broken-down  fence.  A  must  keep 
his  animals  at  home  at  his  own  peril.  So  if  your 
vicious  bull  escapes  from  your  pasture,  solely 
through  a  defect  in  the  fence  which  your  neighbor 
was  bound  to  keep  up,  and  after  roaming  over  his 
lot,  finds  his  way  into  other  lands,  still  further  away, 
and  there  injures  man  or  beast,  you  are  responsible, 
though  you  did  not  know  the  fence  was  down.  105  Mass.  7i. 

For  similar  reasons,  if  A  turns  his  cattle  into  the 
highway  and  they  come  on  to  your  land  from  the 
road,  either  because  your  front  fence  is  defective  or  j^  johns.  385. 
altogether  gone,  you  have  a  remedy  against  A  for^'^^^°^-  ^®^ 
all  the  damages  you  sustain  ;  for  you  are  not  obliged 
to  have  any  fence  on  the  road,  except  to  keep  your 
own  cattle  in,  and  A  must  keep  his  own  cattle  at 
home.     And  so  stringent  is  this  rule,  that  if  other 
people,  in  roaming  over  your  grounds,  hunting,  fish- 
ing, or  berrying,  leave  your  bars  down,  by   which 
your  cattle   escape  into   the   highway,    and    thence 
come  into  my  cornfield,  you  are  responsible  to  me  for 
all  the  damage,  although  not  actually  in  fault,  if  you 
kept  all  your  fences  up.     On  the  other  hand,  if  youaoN.  H.  143. 
are  carefully  driving  your  cattle  along  the  highwa}^^ 
and  without  your  fault  they  break  away  from  your 
control,  and  run  into   my  adjoining  land,  and  you 
drive  them  out  as  soon  as  you  reasonably  can,  you 
are   not  responsible  for  the  damage  done  ;    for  you  ii4  Mass_.  466. 
had  a  right  to  drive  them  along  the  highway,  withsi  Penn.  St, 
proper  care  and  attention  ;  while  in  the  other  case  64  fii".  307. 
they  were  not  lawfully  in  the  highway    at  all,  al- 
though the  owner  was  not  personally  at  fault. 

The  proper  legal  height  of  all  division  fences  in 
Massachusetts,  Maine,  and  some  other  states,  is  four 


42  FARM   LAW. 

feet ;  and  they  may  be  made  of  rails,  timber,  boards,, 
or  stone.  A  brook,  river,  pond,  ditch,  or  'hedge, 
may  also  be  sufficient,  or  any  other  things  which  the 
fence-viewers  consider  equivalent  to  a  four-foot  rail- 
fence.  The  number  of  rails  is  not  prescribed  by  law. 
But  do  not  think  because  you  have  a  good  rail-fence, 
four  feet  high,  and  well  kept  up,  that  therefore  you 
have  done  your  whole  duty  in  keeping  your  animals 
at  home  ;  for  if  your  greed}^  cow  pokes  her  head  be- 
tween the  rails,  and  lops  off  your  neighbor's  corn  or 
cabbages,  you  are  as  much  bound  to  pay  for^theMam- 
age  as  if  you  had  driven  her  clear  in  and  told  her  to 
L.  R.  10  c.  p.  eat  her  fill. 

Neither  think  your  responsibility  is  always  con- 
fined to  damage  done  by  your  cattle.  If  one's  cattle 
are  injured  by  your  negligent  fence  you  may  be  re- 
sponsible to  the  owner.  A  few  years  ago  two  farmers 
had  a  wire  fence  between  them,  now  so  common  in 
some  parts  of  the  country.  One  allowed  his  end  of 
the  fence  to  get  rusty,  and  fall  over  into  the  grass, 
and  gradually  it  broke  up  into  short  pieces ;  the 
other's  cow,  feeding  in  the  tall  grass,  accidently 
swallowed  one  of  these  bits  of  wire,  and  a  post  mor- 
tem examination  soon  became  necessary.  The  cor- 
L.  R.  3  c.  p  oner's  inquest  decided  that  the  cow  must  be  paid  for. 
Div.  254.  jf  ^jjat;  is  good  law — and   I  suppose   it   is — your 

wife   or   maid-servant  should  be  careful  where  she 
throws   her  old  hoop-skirt,  lest  some  unlucky    cow 
gets  hold  of  it  while    browsing    on    the    grass   and 
vines  that  have  run  over  and  concealed  it.     This  il- 
lustration owes  its  origin  to  that  prince  of  humorous 
legal  writers,  Mr.  Browne,  editor  of  the  Albany  Law 
Journal. 
18  Barb.  397.       Thcsc  division  fences  may  usually  be  placed  one- 
48Mo!'380.      half  on  each  side  of  the  line,  even  though  ditches  be 
2  Met.  180.      used  three  feet  wide  ;  and  both  owners  have  a  com- 


AS   TO   FARM  FENCES.  43 

mon  interest  in  the  whole  fence ;  and  they  must  be 
kept  in  good  repair  throughout  the  entire  year,  un- 
less both  parties  otherwise  agree.  But  the  duty  of 
maintaining  partition  fences  by  statute,  exists  in 
Massachusetts  only  when  both  parties  improve  their 
lands.  It  would  not  be  just  to  make  a  man,  whose  ^"^"  g^*^'  ^^' 
lands  are  wild,  or  not  improved,  and  on  which  he 
neither  has  cattle  to  stray  away  and  injure  others,  or 
growing  crops  which  can  be  injured  by  other  people's 
animals,  to  pay  the  expense  of  building  or  maintain- 
ing a  fence  which  can  be  of  no  advantage  to  him. 
Accordingly,  if  only  one  of  the  adjoining  owners 
improves  his  land,  he  has  no  right  to  compel  the 
other  to  pay  any  part  of  the  expense  of  a  fence  (ex- 
cept in  some  states  as  to  a  house-lot  of  half  an  acre 
or  less)  ;  and  if  he  needs  a  fence  to  keep  his  own 
animals  at  home,  or  for  any  other  purpose,  he  must 
build  it  himself.  If,  therefore,  A  owns  a  pasture-lot  98  Mass.  565. 
alongside  of  B's  wood-lot,  the  latter  is  not  bound  by 
statute  to  help  maintain  a  fence  between  them  ;  but 
if  A  puts  cattle  into  his  pasture,  he  must  keep  them 
there  as  best  he  can,  either  by  watching  them,  or,  if 
he  thinks  it  cheaper,  by  building  a  fence  himself 
around  his  entire  lot.  So,  if  both  are  wood-lots,  the 
owners  are  not  obliged  to  erect  a  fence ;  but,  if  either 
allows  his  cattle  to  range  the  woods,  he  must  take 
care  they  do  not  browse  through  his  neighbor's 
woods,  or  he  will  be  responsible. 

In  some  states,  if  A,  the  owner  of  land  which  he 
has  heretofore  kept  fenced,  wishes  to  lay  it  common, 
he  can  do  so  by  giving  six  months'  notice  of  his  in- 
tention to  the  occupants  of  the  adjoining  land,  and 
then  he  will  not  be  obliged  to  maintain  a  fence,  so 
long  as  his  land  lies  common  and  unimproved.  The  R-  s.  Me.  ch. 
safer  way  always  is  to  give  this  notice  in  writing,  is)  u^^'  ' 
But  he  must  not  take  away  his  fence  adjoining  any 


44  FARM  LAW. 

improved  land,  without  first  giving  the  owner  or  oc- 
cupant an  opportunity  to  purchase  it,  and  if  they 
cannot  agree  upon  the  price,  the  fence-viewers  will 
appraise  it  for  them. 

The  sum  of  the  whole  matter  is  this :  bj''  our 
common  and  general  law  every  man  is  bound  to  keep 
his  own  cattle  on  his  own  land  at  his  peril.  The 
duty  of  doing  this  by  a  fence  is  created  wholly  by 
statute,  and  a  fence  need  not  be  made  except  where 
the  statute  clearly  requires  it.  And  when  the  law 
requires  a  man  to  erect  a  division  fence,  he  has  a 
right  to  such  use  and  occupation  of   the  adjoining 

60  Barb.  45.    land  as  is  necessary  to  carry  out  that  duty. 

28  Aia.  385.  What  wc  havc  thus  far  said  as  to  the  joint  expense 
of  fences,  relates  only  to  partition  fences  between 
two  farmers.  As  to  fences  along  a  railroad,  the  law 
is  quite  different.  The  law  of  Massachusetts  requires 
the  company  when  requested  to  maintain  a  suitable 
fence  along  the  whole  line,  through  woodland  as  well 
as  improved  land  ;  and  the  farmer  has  no  part  of  the 
expense  to  pay.  This  railroad  fence  need  not  be 
always  four  feet  high,  nor  need  it  always  be  so  close 

Pu^lts' Mass  ^^  ^^^  division  fence  between  land-owners.     It  must 

e.ii2,sec.  102.  be  Suitable  merely,  —  suitable  for  the  place  where 

106  Mass,  193.  ...  i  ,     ,  i  i  i 

119  Mass.  516.  it  IS  Situated ;  and  through  the  woods,  or  where  there 
is  little  or  no  danger  of  animals  straying  on  to  the 
track,  it  might  be  quite  light,  and  yet  comply  with 
the  law.  But  if  any  cattle  of  the  adjoining  land- 
owner do  escape  through  it  on  to  the  track,  through 
its  unsuitableness,  and  are  there  injured  by  a  pass- 
L'aii"'  ■^i^i  ^"^  train,  the  company  is  responsible.  But  here, 
35  Me.  422.  again,  the  same  principle  comes  in  which  we  have 
before  stated,  viz. :  the  company  is  not  bound  to 
fence  out  everybody's  cattle,  but  only  those  of  the 
land-owner  immediately  adjoining.  If,  therefore,  the 
animals  of  one  remote  from  the  railroad  break  out  or 


AS   TO   FARM   FENCES.  45 

stray  away  from  their  pasture,  and  after  wandering 
over  the  intermediate  lands,  finally  find  their  way  on 
to  the  railroad,  and  there  meet  their  death,  the  rail- 
road company  is  not  absolutely  liable  ;  the  owner 
should  have  kept  his  cattle  on  his  own  lot,  and  not 
allowed  them  to  trespass  on  others'  lands.  In  some 
states  this  may  not  be  so.  Of  course,  if  the  cattle  42  vt!^375. 
were  lawfully  pasturing  on  the  lauds  near  the  railroad,  ^l  ^-  ^  ^^3 
by  permission  of  the  land-owner,  they  would  be  pro- 
tected in  the  same  manner  as  his  own  animals  are  ; 
but  if,  unlawfully  straying  in  the  highway,  they  are 
killed  while  crossing  a  railroad,  the  company  is  not23Vt.  150. 

.  21  N.  H.  363. 

bound  to  pay,  unless  guilty  of  actual  negligence.  12 c.B.'ieo.' 


CHAPTER   IX. 

IMPOUNDING  CATTLE. 

Closely  connected  with  the  subject  of  fences  is 
that  of  impounding  animals.  If  you  find  your 
neighbor's  cattle  in  your  cornfield,  there  are  three 
courses  you  may  pursue  : 

1.  You  may  put  the  animals  in  the  town  pound. 

2.  You  may  sue  the  owner  for  damages. 

3.  You  may  quietly  turn  them  into  the  highway, 
and  say  nothing. 

Of  these  three  the  last  is  the  easiest  to  be  done, 
and  the  hardest  to  make  up  one's  mind  to  do.     We 
are  directed  in  the  good  book  to  forgive  our  neigh- 
bor his  trespasses,  but  my  copy  says  nothing  about 
forgiving  his  cattle  their  trespasses.     If  a  man  ever 
allows  himself  to  violate  the  third  commandment,  he 
is  tempted  to   use  that  outlet  for  his  indignation, 
when  he  jumps  up  from  the  dinner- table  in  a  hot  day 
in  July  to  drive  his  neighbor's  breachy  cattle  for  the 
seventh   time   out   of  his  garden    or   cornfield.     It 
N.  H.  213,    might,   perhaps,    alleviate   his   sufferings   to   know, 
32  Peiii).  St.  that,  if  they  then  stray  away  and  are  lost,  it  is  not 
'  his  fault,  and  the  owner  has  no  claim  on  him  ;  and  he 

9\^cii''^58     ^^y  6ven  mildly  hasten  their  departing  steps  by  the 
13  H*"  ^"m     ^^^  °^  ^  good-sized  dog ;  and  if  the  said  dog,  in  the 
66  111.  309.      excitement  of    the  moment,  takes  a  bit  out  of  the 
nose  or  ear  of  the  trespassing  cattle,  its  owner  is  not 
bound  to  supply  another.     In  some  states,  however, 
you  must,  apparently,  be  careful  how  large  and  fierce 


18  Pick.  227. 


IMPOUNDING    CATTLE.  47 

a  dosr  you  "■  set  on  "  to  your  neighbor's  cattle,  lest 

,  «.  6  Blackf.  258. 

you  also  suner. 

You  may  not  always  with  impunity  set  your  dog 
on  your  neighbor's  cattle  wrongfully  straying  on  to 
your  land.  And  if  one  of  them  is  killed  by  the  dog, 
you  might  be  liable  unless  the  jury  were  satisfied 
that  what  you  did  was  merely  in  the  reasonable  and 
necessary  defence  of  your  property.  I'lU'r^'i^* 

The  second  remedy  of  a  suit  at  law  is  more  peace- 
ful, but  slower,  and  more  likely  to  benefit  the  lawyer 
than  the  farmer. 

Impounding  is  the  most  summary,  and  generally 
the  most  effective,  but  it  is  surrounded  with  legal 
dangers ;  and  a  slight  mistake  is  often  fatal,  and, 
like 

"  Some  muskets  aimed  at  duck  or  plover, 
Bear  wide,  and  kick  their  owners  over." 

The  general  outline  of  this  remedy  in  Massachu- 
setts is  this :  If  any  person  actually  finds  any 
sheep,  swine,  horses,  or  neat-cattle  doing  damage  in 
his  land,  he  may  drive  them  to  the  town  pound,  or 
some  other  suitable  place,  giving  them  sufficient 
food  and  water  ;  or  he  may  shut  them  up  in  his  own 
yard  for  a  reasonable  time  before  driving  to  the 
pound,  and  in  the  meantime  send  a  memorandum  to 
the  owner  of  the  animals,  stating  the  cause  of  im- 
pounding them,  the  amount  of  damage  done  by 
them,  the  charges  for  feeding,  etc.,  in  order  that  the 
owner  may  come  and  pay  the  damages,  and  take 
away  the  beasts.  If  he  does  not  come,  or  if  the 
party  impounding  prefers,  he  may,  in  the  first 
instance,  drive  them  to  the  pound,  or  send  for  a  field 
driver  (who  is  generally  the  last  married  man  in 
town)  and  request  him  to  impound  them,  sending  a 
similar  memorandum  to  the  pound-keeper,  and  also 
a  written  notice  of  the  fact  to  the  owner  of  the  ani* 


48  FARM   LAW. 

mals,  within  twenty-four  hours,  containing  a  descrip- 
tion of  the  beasts,  and  a  statement  of  the  time,  place, 
and  cause  of  impounding.  Before  the  owner  can 
release  his  animals,  he  must  pay  the  damages  and  all 
the  expense ;  and,  if  he  decline  to  do  so,  they  may 
be  sold  by  public  auction,  and  the  balance  of  the 
proceeds  above  the  expenses  deposited  with  the  town 
treasurer  for  the  benefit  of  the  owner.  This  remedy 
seems  to  be  seldom  resorted  to  in  modern  days  ;  for, 
in  most  of  the  town  pounds  which  we  pass,  we 
notice  that  the  gate  is  entirely  gone,  or  so  dilapidated 
as  to  furnish  very  little  security  against  the  escape 
of  animals  confined  therein ;  nevertheless,  every 
town  in  Massachusetts  and  Maine  is  still  liable  to  a 
fine  of  fifty  dollars  for  not  keeping  one  or  more  suit- 
X^'tsec!  able  pounds. 

^-  A  recent  law  in  Massachusetts  has  added  one  more 

very  important  protection  against  invading  animals, 
making  the  owner  of  any  sheep,  goats,  cattle,  horses, 
swine,  or  fowls,  liable  to  a  fine  of  ten  dollars  if  he 
wilfully  allows  them  to  enter  another's  orchard,  gar- 
den, mowing-land,  or  other  improved  land,  after  be- 
MassPub.sts.  ing  forbidden  in  writing,  or  by  notice  posted  thereon, 
chap.  203,  sec.  rpj^jg  statute  extends  to  fowls,  which  the  laws  in 
regard  to  impounding  did  not. 


CHAPTER  X. 

farmer's  animals. 

Passing  from  the  subject  of  cattle  straying  away, 
and  doing  damage  on  other  people's  grounds,  we 
have  next  to  consider  how  far  the  farmer  is  liable  for 
their  good  behavior  in  the  public  streets,  or  even  on 
his  own  premises.  It  is  clear  enough,  that  if  a 
vicious  horse  by  the  city  sidewalk  suddenly  nips  a 
piece  out  of  your  coat-sleeve,  as  you  are  passing  by, 
and  his  owner  knew  his  habits,  he  is  bound  to  pay 
the  tailor's  bill ;  whereas  if  he  only  frightens  you, 
and  makes  you  jump,  you  have  no  redress,  for  that 
is  what  the  law  calls  damnum  absque  injuria.  That 
is  an  innocent  expression  in  itself ;  but,  if  you  give 
an  excited  utterance  to  it,  a  by-stander  might  think 
you  were  indulging  in  forbidden  language  !     ,. 

It  may  not  be  generally  understood  that  if  a  man 
turns  his  animals  loose  into  the  public  highway,  and 
they  there  injure  the  person  or  property  of  another 
lawfully  using  the  way,  the  owner  is  responsible  for 
all  damages  they  may  do,  whether  he  knew  they  had 
any  dangerous  disposition  or  not.     He  had  no  right  4  ^He^  444^ 
to  let  his  cattle  run  loose  in  the  public  highway.     In  fs^enn^^St 
one  instance  a  farmer's  old  black  sow  was  wallowing    i^s. 
in  the  gutter  by  the  side  of  the  road,  and  frightened 
a  horse  and  threw  a  young  lady  out  of  the  carriage  ; 
the  farmer  was  held  liable,  although  he  did  not  know 
the  animal  was  at  large.     In  another  instance  a  man  55  Me.  538. 
let  his  horse  go  out  to  feed  in  a  public  place  where 
some  very  young  children  were  playing,  and  some  of 


50  FARM   LAW. 

them  began  to  switch  him,  whereupon  he  turned  and 
kicked  one  of  them  so  that  he  died,  and  the  owner 

10  Cox,  102.  ^g^g  convicted  of  manslaughter.  Had  he  known  the 
animal  was  dangerous,  it  might  have  even  been  more 
serious  with  him,  since,  in  the  Mosaic  law,  it  was 
declared  that  if  the  owner  of  an  ox  knew  that  it 
pushed  with  his  horn,  and  did  not  keep  it  in,  and  it 
killed  a  man  or  woman,  not  only  the  ox,  but  also  the 

Exod.  xxi.  29.  owner,  was  put  to  death. 

And  now  as  to  a  farmer's  liability  for  animals  on 

37  Conn.  404.    ■,.  .  r         j 

124  Mass.  49.  ^is  own  premises.  Ji, very  owner  ot  a  dangerous  or 
^ff4^"^°^^*^' vicious  animal  known  to  be  such,  is  liable  for  all  in- 
^^^'  ^  ^^^'  ^^^y  ^^  ^^y  ^°  *°  another,  even  though  the  latter  is 
o„^^?^'  o^-  ^t  the  time  trespassincr  on  the  former's  premises.    If, 

38  Wise.  300.      ,  „  t  b  f 

37  Iowa,  H13.  therefore,  a  man,  while  hunting  through  your  woods 
on  Sunday,  is  attacked  and  bitten  by  your  savage 
dog,  you  must  pay  for  the  pound  of  flesh,  although 

17  Wend.  497.  jq^  ^[^  qq^  gg^  Jjjjjj  qq        You  should  haVC  pOStcd  up 

the  advice  of  St.  Paul, — Beware  of  Dogs.  And 
in  like  manner,  if  a  boy,  while  robbing  an  orchard, 
is  tossed  by  a  vicious  bull  into  the  boughs  of  the 
apple-tree  overhead,  the  owner  is  as  much  liable  in 
law  to  pay  for  the  boy's  torn  trousers  as  if  he  had  re- 
ceived the  same  salutation  when  boldly  coming  up 
the  path  in  broad  daylight,  to  call  on  the  farmer's 
youngest  daughter.  In  one  instance  a  farmer,  who 
was  much  annoyed  by  strolling  fishermen,  put  a 
savage  bull  into  the  lot  along  the  stream.  On  his 
neighbors  remonstrating  with  him  that  he  ought  to 
give  strangers  notice  what  kind  of  an  animal  it  was, 
he  remarked,  "  the  fellow  would  give  them  notice 
enough  himself ; ''  but,  as  his  notice  was  rather  too 
brief,  the  farmer  had  to  pay  five  hundred  dollars  for 
3  c.  &  p.  138.  two  broken  ribs. 

And  if  the  owner  of  a  vicious  animal  is  liable  for 
injuries  to  a  trespasser,  much  more  is  he  liable  to  one 


farmer's  animals.  51 

who  is  lawfully  walking  through  his  grounds.  Not 
long  since,  the  proprietors  of  that  beautiful  "  Con- 
gress Spring  Park,"  at  Saratoga,  were  ordered  by  the 
court  to  pay  |6,500  to  a  young  lady  named  Edgar, 
who,  while  enjoying  a  walk  through  the  park,  was 
attacked,  and  seriously  injured  by  one  of  the  animals 
kept  there  as  part  of  the  attractions  of  the  place ; 
and  it  was  thought  to  be  no  excuse  that  the  owners 
had  posted  up  a  conspicuous  notice, — "  Beware  op 
THE  Buck."  And  after  a  very  elaborate  argument, 
the  Supreme  Court  of  the  United  States  at  Washing- 
ton refused  to  disturb  the  decision.  What  a  dear^QjjQ^Q^ 
■creature  that  buck  was,  wasn't  it,  especially  after 
such  a  verdict ! 

But   this  extreme  and  severe  liability  absolutely 
depends  upon  the  fact  whether  the  owner  of  the  an-^s^^i  ■  &  ^ 
imal  had  any  previous  knowledge  of  the  brute's  war- j^^^^j^^j^  ^^ 
like  disposition.     If  so,  the  mere  keeping  of  such  an  so.  ^j^^^. 
animal  unconfiued  is  itself,  in  law,  deemed  culpable    424. 
negligence.     If  he  did  not  know  the  fact,  some  other 
form  of  negligence  is  essential  in  order  to  make  the 
owner  of  an  animal  liable  for  his  conduct  while  on 
the  owner's  premises,  or  while  lawfully  in  the  high- 
way under  the  care  of  a  keeper.     For  this  reason,  if 
a  man's  horse  runs  away  in  the  street,  and  injures 
some  one,  or  breaks  a  carriage,  the  owner  is  not  lia-  3  Alien,  565. 
ble,  unless  he  carelessly  left  him  unhitched,  or  was ^j|  ^j  ^jj**^- 
guilty  of  some  other  negligence.      The  not  uncom-24  La.   Ann. 
mon  opinion  to  the  contrary  is  quite  erroneous. 

As  to  ownership  of  a  farmer's  animals.  These, 
like  all  other  personal  property,  may  usually  be 
bought  and  sold  by  an  oral  bargain,  and  as  all  know, 
not  even  a  bill  of  sale  is  necessary;  but  in  many 
states,  if  the  animal  is  over  fifty  dollars  in  value,  a 
mere  oral  contract  for  its  purchase  is  not  binding  in 
law  unless  it  be  actually  delivered,  or  the  price  be 
paid,  in  whole  or  in  part,  or  unless  some    note  or 


52  FAEM  LAW. 

Mass.  Pub.    written  memorandum  of  the  sale  be  made  ;  but  the 

iStS.     C.      7o, 

sec.  5.         precise  details  of  this  statute  cannot  be  fully  stated 
in  a  treatise  of  this  kind. 

One  caution  may  be  necessary  in  buying  animals  ; 

that  is,  be  sure  that  the  seller  really  owns  them  ;  for 

59*1^111^     if  a  thief  steals  a  horse,  and  sells  him  to  you,  and 

^2N.H.io8.  you  pay  your  money  for  him,  in  good  faith,  the  real 

9 Allen,  171.    owner  may  come  and  take    him  from  you,  without 

8  Cow.  238.  .  -^    ,  ,  ,  ■,  T^     , 

5  s.  &  R.  130.  repaying    what  you  have  advanced.       Ferliaps    he 
^   *  "    '    would  be  bound  to  pay  a  fair  charge  for  your  keep- 
ing him  in  the  meantime,  but  even  this  is  not  cer- 

106  Mass.  286.  tain. 

Of    course  a  farmer    does    not    lose  his  right  of 
ownership  in  his  domestic  animals,    although    they 
have  straj'-ed  away,  and  been  really  given  up  as  lost. 
129.  And  this  is  so  as  to  animals  which  were  originally 

wild,  but  which  had  been  tamed  or  reclaimed.  A 
farmer  in  New  York  state  once  tamed  a  flock  of 
wild  geese,  and  they  wandered  away  on  to  a  neigh- 
bor's pond,  and  he  shot  them,  but  he  was  held  re- 

10  Johns.  102. sponsible  for  their  value.  On  a  similar  principle,  if 
a  swarm  of  bees  leave  one  of  your  hives  and  take  to 
the  woods,  and  you  follow  them,  and  mark  the  tree 
where  they  light  and  enter,  your  ownership  of  them 
still  continues  good  as  to  all  persons,  unless  it  be  the 
owner  of  the  tree.  No  other  bee-hunter,  at  any 
rate,  has  a  right  to  capture  and  carry  them  away, 

15  Wend.  550.  or  eveii  their  honey.  Bees  belong,  by  nature,  to 
the  class  of  wild  animals,  so  called ;  and  wild  bees  in 
a  tree  ordinarily  belong  to  the  owner  of  the  land 
where  the  tree  is  situated  ;  therefore  a  third  person 
who  finds  a  tree  in  the  woods  containing  a  swarm  of 
bees,  and  marks  it  with  his  initials,  does  not  thereby 
acquire  any  ownership  in  the  bees,  even  as  to  any 
other  bee-hunter,  who  comes  along  afterward,  and 
actually  captures  and  carries  them  away.     The  lat- 

16R.  1. 34.      ^gj,    could    hold    them  as  against    the  first    finder. 


faemer's  animals.  63 

though  perhaps  not  when  claimed  by  the  owner  of 
the  tree.     In  cases  of  wild  animals,  possession  is  pre- 
eminently "  nine  points  in  the  law."  ^  Cow^^ks^" 
The  same  is  true  of  other  wild  animals.     A  hunter  ^  Binn.  54G. 

2  Dev.  162. 

does  not  acquire  any  legal  right  or  ownership  in  a 

wild  animal  by  pursuing  him  with  dogs  and  gun,  not 

even  if  he  has  wounded  him,  and  is  pressing  him  so 

closely  that  his  capture  is    almost    certain.       Any 

other  hunter  may  "  sail  in  "  and  take  him  first,  and 

in  law  would  have  the  better  right.     Perhaps,  if  the 

first  hunter  had  caught  him  in  his  trap,  from  which 

he  could  not,  in  all  probability,   have  escaped,  the 

rule  might  be  different.      But  wild  animals,  which  loS'ohns!  75?' 

are  of  any  value,  either  for  food,  fur,  or  otherwise, 

when  once  reclaimed  or  tamed,  are  properly  subjects 

of  private  property,  and  so  long  as  they  remain  such, 

a  man's  right  to  them  is  fully  protected  by  the  law.    H  nI'c^'sis. 

A  few  other  points  about  your  animals  you  might 
like  to  know. 

You  haven't  a  right  to  keep  a  large  number  of 
swine  so  near  the  highway,  or  so  near  your  neigh- 
bor's house,  that  the  odors  of  the  piggery  are  really 
disagreeable,  and  a  nuisance  to  the  neighboring  fami- 
lies, or  to  travellers  on  the  highway;  and  a  custom 
to  do  so  would  make  no  difference.  Such  things  are 
a  nuisance  in  law.  1^9  Mass.  201. 

If  your  horse  has  the  glanders  it  may  be  killed  by 
order  of  the  Cattle  Commissioners  without  making 
you  any  compensation,  but  their  decision  is  not  con- 
clusive against  you.  You  may  still  go  to  the  jur}'  in 
a  suit  for  the  value  of  the  horse,  and  if  you  prove 
the  horse  did  not  have  the  glanders,  you  can  recover 

the  value.  152  Mass.  640. 

If  you  take  other  people's  cattle  to  pasture  for  the 
season  you  are  not  liable  for  any  injury  to  them,  un- 
less you  were  guilty  of  some  neglect  in  taking  care 
of  them,  which  the  owner  must  distinctly  prove.  ^'^^  ^^^^^-  *®^" 


CHAPTER  XI. 

ABOUT  DOGS. 

The  question  of  liability  for,  and  protection 
against,  dogs  has  been  a  perplexing  one  from  earliest 
times.  The  laws  of  Solon — undoubtedly  the  wisest 
law-giver  of  his  age — declared,  that,  if  any  dog  bit  a 
person,  he  should  be  delivered  up,  and  bound  to  a 
log  of  wood  four  cubits  long ;  and  the  Romans  also 
adopted  the  same  law  in  their  "  Twelve  Tables  ;" 
while  an  early  law  in  Wales  provided,  that,  after  a 
dog  had  bitten  three  persons,  he  should  be  first  tied 
to  his  master's  leg,  and  then  killed. 

Owing  to  the  naturally  wild  and  fierce  disposition 
of  dogs,  it  has  not  been  generally  thought  necessary 
by  legislators,  in  order  to  make  the  owner  liable,  to 
prove  that  he  actually  knew  the  dog  was  accus- 
tomed to  bite,  as  it  is  in  the  case  of  other  domestic 
animals.  The  law  presumes  that  the  son  of  every 
Puritan  farmer  has  been  brought  up  from  boyhood 
to  repeat  those  lines  of  good  old  Dr.  Watts  : — 

"Let  dogs  delight  to  bark  and  bite, 
For  God  hath  made  them  so." 

Accordingly  the  owner  is  liable,  if  they  do, 
whether  his  education  on  this  point  has  been 
neglected  or  not.  And  not  only  so,  he  must,  in 
both  Massachusetts  and  Maine,  pay  double  damages 
for  the  pleasure  of  keeping  such  animals  ;  and,  after 
chap.  102,  actual  notice  of  his  disposition,  the  damages  maybe 
sees.  93  and  gometimes  increased  to  threefold.     And   so   compre- 


3  Allen,  191. 


ABOUT   DOGS.  55 

hensive  is  this  law  that,  if  your  dog  rushes  out  into 
the  street,  and  in  mere  play  jumps  at  a  horse's 
head,  whereby  he  is  frightened  and  runs  away, 
breaking  the  carriage,  and  perhaps  the  limbs  of  the 
occupants,  you  are  responsible  for  double  the  amount 
of  the  entire  damage,  though  it  amount  to  several 
thousand  dollars ;  for  the  liability  of  the  owner  is 
not  limited  to  damages  from  the  bite  of  a  dog,  but 
extends  to  any  direct  injury,  however  caused.  If 
the  injury  is  caused  by  a  dog's  playfulness  merely, 
as  by  jumping  upon  a  child  and  throwing  him  to  the 
ground,  and  cutting  his  face  on  the  stones,  the  re- 
sult is  the  same,  the  owner  is  equally  liable.  i48  Mass.  85. 
Again,  if  your  dog  is  at  large,  although  he  is  a  i  Alien,  191, 
good-natured  Newfoundland,  and,  being  teased  and 
irritated  by  young  children  at  play,  turns  upon  them, 
and  bites  one  severely,  you  may  be  liable  to  heavy 
damages,  although  the  dog  was  never  known  to  bite 
before.  4  Alien,  431, 

In  a  recent  casein  Massachusetts,  a  boy  thirteen 
years  old  met  a  large  dog  weighing  about  one  hun- 
dred pounds,  and  as  the  dog  approached,  the  boy 
struck  him  with  a  stick  about  three  feet  long,  and 
thereupon  the  dog  snapped  at  him,  and  bit  him  on 
the  leg  ;  but  the  dog  had  to  pay  for  it,  because  the 
jury  thought  the  boy  acted  as  most  boys  of  his  age 
would  have  done!  If  he  had  been  thirty-one  10-^24 Mass  57 
stead  of  thirteen  years  old,  the  dog  might  have  come  ^s  wise.  300. 
off  victorious.  ^5  m.  935.: 

The  old  notion  was  that  every  dog  was  entitled  to 
one  bite  before  his  owner  could  be  made  liable  ;  but 
this  doctrine  is  now  exploded,  and  in  these  days 
every  bite  counts  one,  large  or  small.  And  this  is  (^-^""J"  m  ^' 
so,  although  the  dog  is  duly  licensed  and  collared. 
The  object  of  the  dog-tax  was  not  to  exempt  the 
owner  of  a  dog,  when  known,  from  his  former  liabil- 


56  FARM  LAW. 

ity  for  all  his  dog's  mischief,  but  to  provide  a  fund 
for  the  remuneration  of  the  farmer,  when  the  owner 
was  not  known,  or  was  not  pecuniarily  responsible. 
Accordingly,  in  Massachusetts,  any  man  whose  ani- 
mals are  injured  by  a  dog,  may  now  have  either  mode 
of  redress, — he  may  file  his  claim  with  the  select- 
men, and  take  simply  the  amount  of  damages  he  may 
have  sustained  ;  or  he  may  '"go  for"  the  owner  of  the 
dog,  and  get  double  damages,  if  he  can  :  but  he  can- 

2  Allen,  208.   not  try  both  methods.     If  he  is  paid  his  simple  dam- 

age out  of  the  dog-tax,  the  county  may  compel  the 
owner  of  the  guilty  dog  to  refund  the  amount  paid 
out.  This  choice  of  remedies,  however,  does  not  ex- 
ist in  Maine,  for  in  that  state  he  must  look  only  to 
the  keeper  of  the  dog  for  redress.  And  if  the  keeper 
of  the  dog  is  not  the  owner,  but  merely  harbors  the 
52  Me.  178.  bcast,  he  is  liable  for  the  damage  done  just  the  same. 
The  statute  of  Massachusetts  (Pub.  Sts.  C.  102, 
§  93),  not  only  makes  the  owner  of  a  dog  liable  for 
his  misdeeds,  but  the  "keeper"  also.  What  consti- 
tutes one  a  keeper  is  ordinarily  a  question  of  fact  for 

3  Allen,  101;  the  jury   under  all  the  circumstances  of  the  case. 
5..    .    .  368.       -g^j.  j^gpgiy  allowing  another  to  keep  a  dog  on  one's 

premises  for  his  own  pleasure  or  company,  does  not 
128  Mass.  218.  j^  q^^^  q^  itself  Constitute  one  a  "keeper"  of  such  dog. 
Therefore   a  farmer   could  hardly  be  held    liable 
for  the  conduct  of  a  dog  which  his  hired  man  owned 
and  brought  on  to  his  premises,  merely  because  he 
153  Mass,  349.  did  not  forbid  it,  or  drive  the  dog  away.     Neither  is 
a  wife  liable  as  keeper  of  a  dog  owned  by  her  hus- 
band, though  kept  on  premises  which  she  owns,  and 
j52Mass.  7.     qh  wliicli  she  Carries  on  her  own  separate  business. 

You  will  observe  that  the  Massachusetts  statute 
says,  that  the  owner  or  keeper  may  be  liable,  etc.  It 
does  not  mean  that  both  are.  You  cannot  sue  both 
in  one  suit,  one   as  owner  for  owning,  and  one  as 


ABOUT   DOGS.  5"^ 

keeper  for  keeping.  Nay  more,  if  you  sue  one  and 
get  a  judgment  against  him,  you  cannot  afterwards 
sue  the  other,  even  though  3'ou  cannot  collect  the 
damages  of  the  first  one  because  of  his  inabilit)''  to  ^^*  ^*^^'  ^^* 
pay.  You  must  look  carefully  before  you  begin. 
Be  sure  you're  right  before  you  go  ahead.  If  one  is 
injured  in  his  own  person,  his  only  remedy  for  re 
muneration  is  against  the  owner  of  the  dog.  The 
"dog-law"  does  not  include  injuries  to  man,  but  only 
to  his  domestic  animals.  Perhaps  it  should  be  ex- 
tended in  this  respect. 

But  no  man  is  obliged  to  wait  until  the  mischief 
is  done,  and  then  seek  redress  by  the  law's  delay. 
You  may  take  the  law  into  your  own  hands,  and  kill 
any  dog,  licensed  or  not,  that  suddenly  assaults  you  13  Johns.  312. 

•^  "^  "^    .     21  Wend.  407. 

while   peaceabl}''    walking  or   riding   in   the   public  2«  vt.  638. 
streets  ;  and  so  you  may  if  the  dog  is  found  out  of  the 
enclosure  or  care  of  the  owner,  wounding,  worrying,, 
or  killing  any  poultry,  neat-cattle,  sheep  or  lambs.  9  John.  233. 
So  as  to  a  dog  which  continually  haunts  your  house,  52  BMb.  15. 
barking  and  howling  day  and  night,  disturbing  the  ^*^  ***^^'  ^^®" 
peace  and  quiet  of  your  family.     But  you  could  not  2-'  Wend.  334. 
lawfully  kill  a  neighbor's  dog  merely  because  he  was 
peaceably  walking  over  your  grounds  without  leave. 
If  a  dog  is  not  licensed,  or  has  no  collar  on,  your 
right  to  kill  him  is  much  broader.     The  law  of  Mas- 
sachusetts  says   you   may    kill    him   "whenever    or  i33  Mass.  240. 
wherever  found."     These  are  its  exact  words.     But 
if  you  think  this  authorizes  you  to  kill  him  on  his 
owner's  premises,  and  you  should  pursue  him  into 
his  owner's  house  and  there  kill  him,  contrary  to  his 
master's  wishes,  you  might  find  out  your  mistake  by 
being  compelled  to  pay,  not  only  the  full  value  of 
the  dog,  but  also  for  unlawfully  entering  the  owner's  n  AUen,  151. 
premises.     "Whenever  and  wherever  found,"  there- i5^(^ayr6^^* 
fore,  don't  mean  exactly  what  it  says.     Such  are  the*^?^*^**** 
guirks  of  the  law. 


68  FARM  LAW. 

Again :  do  not  think,  that,  because  you  can  openly 
and  publicly  shoot  an  unlicensed  dog  which  is  hang- 
ing around  your  premises  annoying  your  family,  you 
can  therefore  poison  him  ;  for  that  kind  of  physic  is 
not  to  be  thrown  even  to  dogs,  and  the  mere  expos- 
ing of  any  poison  for  that  purpose,  whether  the  dog 
touches  it  or  not,  may  cost  you  fifty  dollars  and  the 
costs  of  prosecution.  And  this  is  very  moderate, 
considering,  that,  for  the  malicious  poisoning  of  some 
other  domestic  animals, — even  a  sucking  calf, — you 
may  obtain,  if  you  live  in  Massachusetts,  a  free  resi- 
dence in  that  well-known  state  institution  at  Charles- 
town  for  Jive  i/ears,  or  if  you  live  in  Maine  you  may 
be  a  guest  at  Thomaston  for  four  years^ — that  is, 
unless  you  see  fit  to  break  out  before  that  time ! 
Thus  much  for  the  law  of  dogs.  And  the  only  crumb 
of  consolation  I  can  offer  on  this  subject  is  this :  if 
two  dogs,  yours  and  your  neighbor's,  go  off  on  a  joint 
raid  on  a  flock  of  sheep,  you  are  bound  to  pay  only 
20  Pick.  477.  for  those  your  dog  killed,  and  not  the  others,  if  any- 
4N.  Y.  131. '  body  can  find  out  which  was  which;  whereas,  if  the 
|vt"g;^^'    two  owners  of   the  dogs  go  out  together  to  rob  a 

9  ind.  72.       melon-patch,  one  is  liable  for  all  the  melons  carried 

10  "Wend.  654.  away,  although  the  other  ate  them  all ;  so  that  in  one 
18  Ohio',  1,  '    respect  the  law  seems  to  favor  the  dogs.     On  the 

399.°^'  ^' other  hand,  as  a  man  is  not  liable  for  any  sheep, 
4Denio.  175.  fowls,  or  other  things  which  his  mischievous  boys 
37  Tex  ^406.  wantonly  kill  when  coming  home  from  an  unsuccess- 
24  Mo.  219      fui  hunt,  drunk  or  sober,  in  this  respect  again  the 

17  Wise.  230.  '  1       J  *.  ■_' 

13  Kans.  348.  law  is  rather  against  the  dogs. 

However  useful  dogs  may  be,  it  was  a  principle  of 

the  old  common  law  of  England,  adopted  in  many 

■o  „  „  „  o^   American   states,   that  a   man   could   not   have    any 

xJell  Kj.  Kj,  34.  •PTi         IT 

8  s.  &  R.  671.  ownership  in  a  dog,  and   therefore  it  1  should  steal 

400.  ^°       '  your  dog  (instead  of  one  of  your  chickens),  I  could  not 

48  Ala.  161.    ^  convicted   of  larceny  for  it.     But  in  many  states 

^  p?rTer,*593.  a  morc  seiisiblc  rule  exists,  either  by  statute,  or  other- 


1 

4  Parker,  386. 


Wise. 


CHAPTER   XII. 

LIABILITY   FOR    HIS    MEN. 

The  liability  of  a  farmer  who  employs  many  hands 
may  prove  extremely  onerous  at  times.  As  a  general 
rule,  he  is  liable  for  all  the  injury  they  do  while  ac- 
tually employed  in  his  business  ;  therefore  if  you  send 
a  boy  to  burn  old  brush,  and  the  lad  leaves  his  work 
to  look  after  his  partridge-snares  or  rabbit-boxes  in  the 
wood,  and  the  fire  runs  into  the  next  field,  and  con- 
sumes the  crops  or  fence  of  your  neighbor,  you  must 
pay  the  bill,  although  you  told  him  to  watch  it  care- 
fully, and  never  leave  it  a  minute.  If  you  send  a  loads  Gilm,  soa 
of  farm  produce  into  town,  and  the  diiver  falls  into  a  '^  •  • 
doze  and  runs  into  another  team,  you  must  pay  for 
the  broken  spokes.  If  your  man,  in  going  to  or  from 
the  hayfield,  carelessly  swings  his  scythe,  and  cuts  an 
ugly  gash  in  the  leg  of  a  passer-by,  you  had  better  pay 
the  doctor's  bill,  and  be  glad  to  get  off  thus  easy.  If, 
in  cutting  your  wood,  your  man  accidently  cuts  over 
the  line,  on  your  neighbor's  lot,  you  are  responsible,  al- 

thousfh  you  told  the  man  where  the  line  was.     A  short  23  Mich.  298. 
^  .  ,..,.  ,,  ,3  Sneed,  20. 

time  since  a  man  was  driving  his  master  s  horse  and 

wagon  through  Bromfield  street,  Boston,  on  his 
master's  business,  when  the  horse  kicked  off  a  hind- 
shoe,  which  struck  a  large  plate-glass  window  in  a 
store,  and  the  owner  of  the  animal  had  to  buy  another 
pane  of  glass.  And  though  your  man  shows  a  touch  of  126  Mass.  24. 
maliciousness  in  his  act  done  in  the  prosecution  of  your 
business,  and  intentionally  runs  into  another  team 
which  somewhat  obstructs  his  way  while  driving  your 


60  FAEM   LAW. 

load,  you  may  not  screen  yourself  beliiiid  his  uuneces- 

114^^^"'  ^^8  ^'^^y  ^^^^  wilful  violation  of  your  orders.    Of  course,  in 

i09,Mass.  i5i.  all  tliBse  cases,  jou  could  compel  the  servant  to  repay 

you  all  the  expenses  he  had  thus  caused   you  by  his 

misconduct.     On  the  other  hand,  to  make  you  respon- 

43  Conn.  244.  sible  for  his  carelessness,  lie  must  have  been  at  the  very 

time  on  your  business.      If  he  borrows  your  horse  and 

wagon,    and   goes  off  on  pleasure,  or  business  of  his 

own,  and  runs  over  somebody,  you  are  not   responsible 

26jPenn.  St.  merely  because  it  was  your  horse  and  wagon  ;  much 

less  would  you  be  liable  if  your  servant  took  your 

4  Daly,  338.     team     without     your     knowledge     on    pleasure    or 

business  oi  his  own. 

How  it  would  be  if  the  fellow  was  on  his  own 
business  and  yours  too,  is  a  nice  question,  which 
might  puzzle  even  a  "  Philadelphia  lawyer."  In  one 
instance  a  farmer  lent  his  man  his  team  to  go  to 
town  for  a  holiday,  and  asked  him  to  stop  at  the 
butcher's  on  his  way  home,  and  bring  along  a  piece 
of  meat  for  next  day's  dinner.  While  fulfilling  this 
order,  the  man  also  took  a  little  •'  fire-water,"  and 
soon  after  ran  over  an  old  woman  in  the  public  high- 
way ;  but  the  master  was  considered  not  responsible^ 
^  557!^  ^'  ^'  '^^is  ^^^'  however,  in  the  courts  of  the  Emerald  Isle. 
One  more  distinction  on  this  subject  it  may  be 
well  to  state  ;  and  that  is,  that,  although  an  employer 
is  responsible  for  any  careless  injury  his  men  ma}"  da 
to  third  persons,  he  is  not  responsible  for  such  an  in- 
jury to  other  fellow-workmen.  If  a  hired  man, 
therefore,  by  the  very  same  act  of  negligence,  injures 
a  co-laborer  and  also  a  bystander,  the  latter  would 
have  redress  against  the  master,  and  the  other  not ; 
for,  by  a  species  of  rather  artificial  reasoning,  I  think, 
a  man,  when  hiring  out,  is  supposed  in  law  to  have 
anticipated  any  direct  injury  from  the  carelessness  of 
his  co-laborers,  and  taken   the  risk  ou  himself,  what- 


LIABILITY   FOR    HIS    MEN.  61 

ever  his  rate  of  wages.     But,  on  the  other  hand,  he ^^2*^*8'-  234. 
is  not  presumed   to    have    contemplated    any   negli- 
gence on  the  part  of  his  employer;  and  therefore  he 
has  a  remedy  against  the  latter  for  his  own  personal 

•  -J-         J  •         £c    •       ^48  Me.  113. 

carelessness,  or  in  providing  dangerous  or  insumcient  29  Conn.  548. 
machinery  or  apparatus,  or  even  in  hiring  notoriously  38  Ind.  294. 
incompetent  or  habitually  careless  men.     In  one  in- 
stance an  employer  was  compelled  to  pay  two  hun- 
dred dollars  to  his  hired  man,  who  fell  into  a  barrel 
of  hot  water,  set  in  the  ground  and  carelessly  left  ^^^  ^*^*  ^22* 
uncovered,  but  which  the  man    did   not   know    of. 
And   this  last  rule  would  probably  render  the  em- 
ployer liable  for  any  injury  to  his  servants  from  dan- 
gerous or  vicious  animals  intrusted  to  them  to  take 
care  of  ;  at  least,  if  the  owner  knew  of  their  charac-^  Exch.  223. 
ter,  and  the  man  did  not. 

Statutes  have  been  passed  recently  which  change 
the  common  law  liability  of  some  employers  for  acts 
of  their  men,  but  it  is  expressly  declared  in  the  Em- ^^.^^  ^^  ^gg^ 
ployers'  Liability  Act  of  Massachusetts  that  the  act  ch. 270,  sec.  T. 
shall  not  apply  to  injuries  caused  to  domestic  ser- 
vants, or  farm  laborers,  by  other  fellow-employees. 

But  this  whole  subject  is  surrounded  with  subtle 
distinctions ;  and  my  best  advice  to  you  is,  that,  if 
you  ever  have  such  a  case  do  not  rely  upon  this  arti- 
cle, nor  upon  any  of  those  books  called  "  Every  Man 
his  own  Lawyer,"  but  go  and  get  the  best  legal  coun- 
sel you  can  find. 


CHAPTER    Xm. 

ABOUT    FIRES. 

If  a  careless  hunter  fires  your  woods,  and,  much  to 
his  consternation,  the  flames  spread  to  your  fields, 
and  run  along  the  fences  to  your  barn,  he  is  respon- 
sible for  the  whole  loss,  although  he  did  his  best  to 
stay  its  progress.  A  man  who  wrongfully  sets  in 
operation  a  dangerous  instrument,  must  take  all  the 

21  Pick.  378.    consequenccs    directly    caused    thereby ;    and    this 

2  Harr.  443.  would  be  SO  whether  the  fire  ran  along  the  ground 
continuously,  or  whether  the  sparks  were  blown 
through  the  air  a  considerable  distance  over  interven- 

107  Mass.  494.  ing  land,  and  then  set  fii-e  to  some  person's  property. 
But  as  any  farmer  has  a  legal  right  to  burn  the  brush, 
old  stumps,  etc.,  on  his  own  land,  if  he  does  so  at 
proper  times  and  in  a  proper  manner,  he  is  not  res- 
ponsible, if,  by  a  sudden  rise  of  wind  or  other  cause, 
without  negligence  on  his  part,  the  fire  is  accidentally 
communicated  to  a  neighbor's  premises,   and  causes 

I J^^^^'  ^^"c  liini  serious  injury.  The  gist  of  his  liability  (I  be- 
323.  lieve  the  lawyers  call  it)  in  such  cases  is  some  care- 

54  Me.  259.      Icssness,  either  in  the  time  of  setting  the  fire,  or  in 

44  B^rb  424    ^^^  manner  of  doing  so,  or  in  watcliing  it  afterward  ; 

m  Me.  32.       and  the  man  who  suffers  is  bound  to  make  it  clear 

11  Met.  460.  ,  ,  1  1  T.  T 

25  N.  Y.  544.  that  the  other  was  to  blame.  But  even  your  negli- 
gence Avill  not  always  render  you  liable  for  the  spread 
of  a  fire,  unless  it  was  originally  kindled  by  you 
intentionally.  Therefore,  if  your  barn  takes  fii'e 
through  your  carelessness  with  the  lantern,  or  that  of 
your  man  with  his  pipe,  and  thereby  your  neighbor's 


ABOUT   FIRES.  68 

property  is  also  consumed,  you  are  not  bound  to  pay 
for  it ;  the  law  seems  to  consider  that  you  have  suf- 
fered enough  for  your  conduct  in  the  loss  of  your  own  i  bi.  Com. 
property ;  although  there  is  some  difference  of  opinion  37  Barb  15 

ahmif  this  35N.  Y.210. 

aOOUt  tms.  g2  Peuu.    St. 

Still  less  would  you  be  responsible  if  the  fire  orig-^^^^Y  ^^ 
inated  from  causes  beyond  your  control.  If  your 
barn  is  struck  by  lightning,  or  your  haystack  ignites 
by  spontaneous  combustion,  without  any  fault  on 
your  part,  and  the  flames  spread  to  the  adjoining 
owner's  property,  it  would  be  hard  indeed  if  you  had 
not  only  to  lose  your  own,  but  to  pay  for  his  also,  n  q.  b.  347T 
And  I  suppose,  even  if  you  were  careless  in  not 
promptly  and  energetically  putting  it  out  when  you 
could  have  done  so,  and  it  spreads  beyond  your  con- 
trol, this  would  not  render  you  liable,  as  perhaps  it 
might  have  done  had  you  purposely  set  fire  to  your 
brush-heap  or  stubble. 

As  to  railroad  fires  the  law  is  stated  elsewhere. 


10  Cush.  189. 


CHAPTER  XIV. 

WATER  EIGHTS  AND  DRAINAGE. 

Water  is  flowing  and  fleeting,  and  the  rights  of 
farmers  therein  are  much  of  the  same  kind.  If  a 
stream  of  water  flows  through  a  farm,  the  owner  has 
a  right  to  use  any  reasonable  quantity  of  it  as  it  flows 
25  Conn.  331.  along,  for  watering  his  stock,  irrigating  his  land,  or 
4  Ga.  241.  supplying  his  house  tor  domestic  use.  But  he  must 
not  monopolize  the  v/liole  ;  his  neighbor's  cattle  must 
have  water  also.  Perhaps  if  the  stream  be  very 
small,  and  his  own  reasonable  wants  consume  the 
whole  of  it,  he  might  have  a  right  to  use  the  whole. 
He  may,  to  some  extent,  change  the  course  and  flow 
of  the  brook  on  his  own  land,  provided  he  turns  it 
back  into  the  natural  channel  before  it  reaches  the 
land  below  him.  He  has  no  right  to  conduct  it  into 
his  neighbor's  land,  without  his  consent,  at  a  different 
point  or  place  than  where  it  naturally  entered  therein. 
He  may  build  fish-ponds,  or  otherwise  dam  up  the 
stream,  provided  he  does  not  thereby  flow  back  on  the 
10  Mass.  74.    land  above  him.     If  he  does  so,  he  is  ordinarily  liable 

3  Demo,  306.  ■  •      . 

19  N.  H.  471.  to  a  suit  for  trespass,  and  finrlly,  if  he  continues  it,  to 

12  Cush.  454.  .     .  .  ^  ■       ^  .\  ^  X  u 

3a  vt.  426.      an  mjujiction,  except  m  Barnstable  county,  wnere  a 

4  Kansas,  511.  ^^^^^^^   Special  law   allows  such  ponds  upon  paying 

damap-es  i  o  the  owner  of  the  land  flowed.     A  farmer 

154  J4^£iss  579 

'  generally  acquires  no  right  to  flow  another  s  land 
without  his  consent,  as  a  mill-owner  has;  for  the 
statutes  giving  such  right,  upon  payment  of  a  fair 
compensation,  generally  apply  only  to  mill-dams, 
cranberry-dams,  and  the  like ;  and,  if  your  neighbor 
^190,  seS'  48.  below  you  does  so  dam  up  the  stream  as  to  flow  back 


WATER   EIGHTS   AND   DRAINAGE.  65 

on  you,  you  may  enter  on  his  laud,  and  take  down 
enough  of  the  obstruction  to  relieve  your  land  of  the 
overflow. 

So,  if  a  natural    stream    becomes    obstructed  by  ^^  ^^•^'''- *''•^■ 
leaves,  sticks  and  rubbish,  or  snow  and  ice,  you  have 
a  right  to  go  on  to  the  land  and  remove  the  obstruc- 
tions, so  that  the  water  will  flow  as  freely  as  before ; 
and  the  natural    deposits  you  may    place    on    the 5  Met.  429. 
banks  of  the  stream.     The  same  rules  prevail  as  to  ^^  ^^'^^'  ^'^^' 
artificial  water-courses  or  ditches,  provided  you  have 
acquired  a  right  to  have  a  ditch  running  through  an- 
other's lands.     But  you  have  not  ordinarily  such  a 
right,  unless  you  or    your  predecessors    have    pur- 
chased the   privilege  of  him,  or  have  enjoyed  it  so 
long  and  under  such  circumstances  as  to  have  there- 
by gained  a  prescriptive   right,  as  it  is    called,  or, 
lastly,  have  hadthe    ditch  opened  by  commissioners 
appointed  by  the  court  under  the  public  statutes  of3Aiien,7. 
Massachusetts.     If  your  land  is  overflowed  by  back  "ch.  m 
water  from  a  town  sewer  which  the  town  has   neg- 
lected to  keep  free  from  obstructions,  no  doubt  you 
can  recover  the  damages  from  the  town.  i^i  Mass.  174. 

The  rights  and  liabilities  of  farmers  in  surface- 
water  are  xerj  different  in  some  states  from  those  in 
flowing  or  running  streams.  By  "  surface-water  "  is 
meant,  not  only  that  which  comes  from  falling  rains 
and  melting  snows,  but  also  that  which  oozes  out  of 
the  ground  from  springs  or  marshy  places,  and 
which  finds  its  way  over  the  surface,  or  through  the 
tussocks,  but  is  not  gathered  into  a  bed  or  current 
like  a  brook  or  rivulet.  When  once  collected  into  a 
stream,  with  a  bed  and  banks,  it  loses  its  character 
as  surface-water,  and  becomes  subject  to  different 
rules ;  but,  so  long  as  it  is  only  surface-water,  any 
man  on  whose  land  it  is  has  a  right  to  detain  and 
use  the  whole  of  it  on  his  own   land  and  for  his  own 


66  FAKM   LAW. 

purposes,  and  is  not  bound  to  let  any  portion  of  it 

flow  on  to  the  land  below,  unless  he  wishes.     On  the 

other  hand,  he  may  turn  the  whole  of  it  on  to  the 

5^R^*943^^"  premises  below  him,  whether  grass-land  or  cultiva- 

29N.Y.  467.  ted  field,  even  though  it   be  a  serious  in iury  to  such 

76  N.  Y.  60.  '  111  .       •  1    r. 

12    Ohio   St. neisfhbor,  unless  he  collects  it  into  a  definite  artifi- 

300. 

cial  channel,  and  makes  it  a  stream,  for  then  he 
would  be  liable.  In  Indiana,  a  short  time  ago,  a  farmer 
owning  lands  on  the  Ohio  river,  which  were  often 
subject  to  overflow,  planted  a  row  of  trees  on  his 
own  land,  and  along  the  division  line  between  his 
farm  and  the  proprietor  above  him,  whereby,  in 
times  of  great  freshets,  the  drift-wood  and  rubbish, 
floating  along,  was  deposited  on  the  land  of  his 
neighbor,  and  caused  him  some  considerable  trouble 
and  damage  to  remove  it,  but  it  was  decided,  after 
a  very  elaborate  argument,  that  the  upper  proprietor 
64  ind.  167.     had  no  redress. 

100  M  181  ^^  ^  farmer  wishes  to  protect  himself  from  mere 
46  Cai.  346.     surface  water,  he  must  build  up  some  embankment 

49  111.  484. 

23  Mo.  181.  at  the  edge  of  his  land,  and  stop  the  flow,  as  he  has  a 
74  N.  C.767.  perfect  right  to  do,  although  he  thereby  makes  quite 
^'m^^^'  ^*  ^  pond  above,  and  injures  the  crop  there. 

153  Mass.  247.      jjj  j-jjg  qI^  gg^y  State,  no  action  lies  against  the 

owner  below  you  for  backing  surface  water  on  to 
you,  nor  against  the  owner  above  for  turning  it  on  to 
you.  Damming'  is  the  only  remedy.  Nor  will  any 
action  at  law  or  bill  in  equity  lie  against  a  town  be- 
cause by  the  ordinary  flow  of  surface  waters  from 
the  streets,  with  the  usual  impurities  incident  there- 
to, your  brook  is  somewhat  polluted  and  rendered 
less  valuable.  If  you  have  any  remedy  at  all, 
which  is   very   doubtful,    it   is  by    petition    under 

154  Mass.  255.  the  statute. 

And   it  makes   no  difference  whether  the  surface 
water  from  the  road  overflows  your  land,  or  whether 


WATER   RIGHTS  AND  DRAINAGE.  67 

having  been  collected  in  catch  basins  or  gutters  per- 
colates thence  through  the  soil  into  your  cellar.  !•**'  ^^ass.  467. 

If  a  permanent  alteration  is  made  in  the  surface  of 
the  road,  by  water-bars,  spouts,  etc.,  as  to  constantly 
turn  the  road-water  on  to  you,  you  may  perhaps  find 
some  compensation  against  the  town  under  the  Pub. 
Sts.  c.  62.  sec.  15,  but  you  could  not  bring  a  suit  at 
law  against  the  surveyor.  153  m^ss.  247. 

As  to  under-ground  water,    the   law  does  not  gen- 
erally recognize  any  right  of  ownership  therein  ;  and 
consequently,    it"    your    neighbor's    well   is   fed   by 
springs  or  underground    rills  from  your  land,   you 
may  dig  down  on  your  land  to  any  depth  you  please, 
even  near  to  the  line  ;  and   if,  by   chance,  you  cut  off 
the   supplies  to   his  well,    and  leave  it  diy,  he  must  62  Me.  175.  ' 
bear  it  as  well  as  he  can.     But   you  must  be  careful  20  Coiin!  533, 
in   digging  not   to   dig  so  low  as  to  cause  liis  land  to  ^  ''penn^^lt 
cave  into  your  excavation,  or  you   may  be  responsible  ^^28. 
therefor.     This   rifrht   to  cut   off  one's   well   supply  n  Mass.  220. 

122  Mass.  199, 

seems  to  be  confined  to  land  owners  ;  for  if  yoiu-  town  27  Gratt.  77.  ' 
in  building  a  common  sewer  drains  your  well  by  cut- 
ting off  the  water  percolating  through  the  soil,  you 
have  a  remedy  against  the  town  under  Pub.  Sts.  c. 
50,  even  though  your  well  may  not  be  adjoining  the 
tract  through  which  the  sewer  is  laid.  144  Mass.  139 . 

In  connection  with  water  rights  may  properly  be 
considered  the  matter  of 

ICE. 

If  the  mill  owner   below  you  has  raised  a  pond  on 
your  land,  on  which  valuable  ice  may  be    cut,  neither 
he  nor  any  other  ice  dealer  has  a  right  to   maliciously  154  Mass.  414. 
draw   down   the   pond   and  so  destroy  your  ice  crop, 
when  about  ready  to  harvest. 

You  have  the  right  to  cut  ice  made  over  land  which  108  Mass.  I60. 
belongs  to  you.     But  you  could  not  take  ice  enough  91 1„',]\34.  ' 


68  FARM  LAW. 

10  Cusb.  186.  to  appreciably  diminish  the  head  of  water,  if  such  a 

26'Hun.  246. 

82'ind.  568.     result  is  possible.     If  the  pond  is  a  natural  pond,  en- 
tirely on  your  land,  your  right  to  the  ice  is  clear,  and 
so  is  your  right  to  sell  it  to  another  who  would  have 
ii^Midf 'sis'  ^^®  ^^^^  right  to  it.     But  if  the  pond  is  a  "  great  pond," 
i.  e.  a  pond  of  more  than  ten  acres  in  extent,  your 
108  Mass.  470.  rights  are  not  the  same.     By  an  early  colonial  ordi- 
nance, ownership  of  the  soil  under  such  ponds  is  re- 
served to  the  public.     Your  ownership  stops  at  low 
7  Allen,  158.   water  mark,  consequently,  although  your  farm  borders 
77  Me.  100.      on  the  pond,  your  rights  in  it,  or  in  the  ice,  are  no 
131  Mass  222  greater  or  less  than  those  of  any  other  citizen. 

You  have  a  right  to  cut  the  ice,  but  it  does  not  be- 
come your  property  until  you  have  taken  it  into  your 
26  Kans.  682.  posscssioii.     It  is  not  cnougli  to  scrape  off  the  snow 
and  put  up  stakes  showing  where  you  intend  to  cut. 
131  Mass.  474.  ^^^^  jou  cannot  recover  any  damages  of  a  person  who 
M^M^'^iSo'^^"'  ^^*^  holes  through  the  ice  for  the  purpose  of  fishing. 
If  the  ice  is  formed  on  a  river  instead  of  a  pond 
your  rights  are  similar,  but  not  exactly   the    same. 
Private  ownership  of  river  beds  above  tide  water  ex- 
tends in  this  state,  as  in  some  others,  to  the  thread  of 
the  stream.     So  that  you  have  a  right  to  harvest  the 

44  Mich  229  ^^®  ^^P  ^*^  ^^^^^  ■^^^^^'  ^^^  such  rivcrs  are  public  high- 
101  111.  46.  ways,  and  you  may  be  liable  to  a  traveller  injured  by 
18  Me.  433.      your  acts  in  cutting  the  ice. 

79  Me.  456,       "^  * 


CHAPTER  XV. 

TRESPASSING  ON  THE  FARM. 

The   general   rules  in   regard   to   trespassing    on 
another's    lands    are   pretty   well   understood  in  the 
community,  but  on  one  point  there  is  sometimes  an 
erroneous  impression.     It  is  often  thought,  that,  if  a 
person  simply  crosses  your  land  for  twenty  years,  he 
thereby  always  acquires  a  right  to  continue  the  prac- 
tice ;  but  this  is  far  from  being  universally  true.    The 
very  foundation  of  acquiring  such  a  right  (prescrip- 
tive right  as    it  is  called)  is,  that  the  crossing  must 
have   been  adversely  to  the  land-owner,  contrary  to 
his  wishes,  or  at  least  without  his  permission,  express 
or  implied,  and  under  a  claim  of  a  legal  right  so  to 
do,  whether  the  farmer  is  willing  or  not.     If,  there- 
fore, the  person  crossing  does  so  with  the  permission, 
or  by  the  mere  indulgence,  of   the  land-OAvner,  and 
not  under  any  claim  of  right,  it  is  wholly  immaterial 
how  long  the  custom  has  continued.      Forty   years' 
travel  by  consent  of  the  owner  would  not  give  any 
right  to  continue  to  pass  after  he  had  been  forbidden 
to  do  so ;  and,  to  avoid  any  misapprehension  in  such 
cases,  it  is  wise  for  the  farmer  to  put  up  notices  for- 
bidding it,  as  we  so  often  see  done.     And  this  not 
only  makes  it  clear  that  thenceforward  the  intruder  is 
a  trespasser,  but,  by  a  recent  law  in  Massachusetts,  he 
is   also  made   liable,   after   such  notice,  to  a  line  of 
twent}^  dollars  for  wilfully  crossing  or  entering  upon 
any  garden,  orchard,  mowing-land,  or  other  improved 


70  FARM  LAW. 

or  enclosed  land,  between  the  first  day  of  April  and 
the  first  day  of  December.     Maine  also  has  a  similar 

^203  £c '  99 '  ^^^^'     "^^^^^  ^^  ^^^^^  "^^^'^  criminal  where  the  intruder 

stj y,  0. 410  has  fire-arms. 

If,  also,  a  man's  object  in  coming  into  your  prem- 
ises is  to  steal  yoiu'  fruit,  cranberries,  or  other  crops, 
that  itself  is  a  crime,  although  he  does  not  accomplish 
his  purpose  ;  and  you  may  put  him  out  by  force,  after 
notice  to  leave,  using  no  unnecessary  violence.  But 
you  cannot  lawfully   set   spring-guns,  man-traps   or 

St.  1890.  C.403,  otlisr  instruments  which  may  do  him  grievous  bodily 

37^10  ^'  ^613    ^^^^'  without  giving  notice  of  such  hidden  dangers. 

31  Conn!  479.  Perhaps  if  ample  notice  was  posted  up,  of  the  exis- 

7  J.  J.  Marsh.  ^  .    -,  .  ^  ,     .  ^'  .    . 

478.  tence  and  location  oi  such  instruments  oi  injury,  a 

person  trespassing  misfht  have  no  remedy  for  his  mis- 

3   B     &   Aid  J.  o         o  ^/ 

304.  '  fortune.      But   even  this  has  been  pointedly  denied 

59  Ala.  1.  -j^  ^Yiis  country.  For  it  is  notliing  less  than  murder 
to  deliberately  and  intentionally  kill  another,  merely 
for  trespassing  on  your  grounds. 

The  old  school-books,  in  my  early  days,  had  a  pic- 
ture of  boys  stealing  fruit  in  the  boughs  of  an  apple- 
tree,  with  a  farmer  picking  up  stones,  and  a  maxim, 
that,  if  words  and  grass  did  not  answer,  he  might 
throw  stones.  But,  if  in  so  doing  you' should  happen 
to  put  out  the  boy's  eye,  it  might  go  hard  with  you  ; 
for  you  have  not  a  right  to  kill  even  your  neighbor's 
hens  while  scratching  up  your  melons  and  cucumbers. 
The  custom  to  do  so,  and  toss  the  fowls  over  the 
fence,  may  afford  some  satisfaction  to  the  gardener ; 
but  it  makes  him  liable  to  pay  the  full  value  of  the 
nuisances,  although  he  had  repeatedly  warned  their 
14  Conn.  1.      owner   to   keep   them   at   home,    or  take  the  conse- 

107  Mass.  406.  nnpnpp« 
10  S.  &  R.  394.  ^^^^CeS. 

A  farmer  in  Connecticut,  who  had  been  greatly  an- 
noyed by  his  neighbor's  hens  scratching  up  his  garden 
seeds,  spread  a  quantity  of  Indian  meal,  mixed  with 


TRESPASSING    ON    THE   FARM.  71 

arsenic,    on    liis   oavh    laud,    which    had    tlie    effect 
designed  ;  but  lie  had  to  pay  for  the  fowls.     Shooting 
an  animal  merely  because  it  is  trespassing  on    your 
grounds,  and  injuring  your  crops,   is  not  justifiable. 
But  this  is  not  so  as  to  a  flock  of  doves,  while  busy 
pulling  up  your  early  peas  or  sweet  corn.     While  so 
engaged  you  may  shoot  and  eat  them  with  impunity.  ^  ^°®^  ^-  ^' 
Whether  this  rule  applies   to  an  old  cat  which  is  ^  Johns.  233. 
after  one's  chickens,  I  don't  know ;  but  I  mean  to  try  ^^  ^^^^^  j 
it  the  first  chance  I  have.     Not  but  what  a  cat  may  be 
in  the  protection  of  the  law  on  her  owner's  own  prem-  ^'^  ^-  ^\**- 

^  ^4  Tex.  492. 

ises,  as  a  man  in  Canada  recently  discovered,  when  he  60  ill.  211. 

had  to  pay  ten  dollars  for  the  fun  of  shooting  one.    Law  J.  14, ' 

But  when  she  has  a  chicken  in  her   mouth,  or  is  just 

ready  to  S2)ring  at  one  in  your  own  yard,  the  case  may 

be  different.     And  in   the  case   of  the  fowls  above 

spoken  of,  the  safer  way,  instead  of  shooting  them, 

would  be  to  buy  a  smart  game  cock  that  would  soon 

lay  them  out  in  windi'ows,  as  a  good  old  deacon  I 

have  read  of  did  ! 

The  general  rule  seems  to  be  that  a  farmer  has  the 
right  to  kill  the  animals  of  another,  if  they  are  in  pur- 
suit of  his  own,  and  there  is  reasonable  ground  to  ap- 
prehend that  they  will  attack  and  destroy,  or  carry  off 
the  latter. 

This  is  clearly  so  in  the  case  of  trespassing  dogs, 
cats,  hogs  and  such  animals.     The  right  to  kill  such 
animals  is  not  confined  to  the  very  moment  when  they 
are  in  pursuit,  or  about  to  immediately  attack  the 
farmer's  animals  ;  but  if  from  their  habits  or  former  ^.^.^  j^^^  ^^^ 
conduct,  there  is  good  reason  to  believe  one's  own  i^^"^-  ^^a. 
property  is  in  danger,  a  man  need  not  wait  until  the  9  Johus.  233. 
dog  has  the  lamb  by  the  throat,  or  the  cat  has  the    318. 
chicken  in  its  mouth,  before  he  can  fu:e.  xiJ" 

An  interesting  illustration  of  this  right  to  kill  other 
people's  animals   recently  occurred  in  the  northern 


72  FARM   LAW. 

part  of  New  Hampshire.  A  farmer  had  a  flock  of 
geese  swimming  around  his  pond,  and  hearing  them  all 
vigorously  cackling  one  morning,  came  out  and  saw 
four  minks  swimming  after  them  in  hot  pursuit,  and 
within  a  rod  of  them.  As  soon  as  the  minks  saw  him 
they  stopped  pursuing  the  geese,  and  ran  out  of  the 
water  on  to  a  little  island,  and  then  stopped  a  minute, 
but  long  enough  for  the  farmer  to  get  aim,  and  he 
killed  them  all  at  one  shot.  A  law  of  New  Hampshire 
forbids  any  man  to  kill  any  minks,  sable,  or  otter  be- 
tween May  and  October  under  a  penalty  of  ten  dol- 
lars for  every  animal  so  killed.  And  the  farmer  being 
prosecuted  for  this  penalty,  it  was  decided  after  a  very 
elaborate  examination,  that  he  had  a  right  to  kill 
them,  notwithstanding  the  law,  if  necessary  to  protect 
his  own  animals  from  destruction,  and  that  it  was  not 
necessary  he  should  first  try  to  drive  his  own  animals 
■  ■  ■  ■  out  of  harm's  way  before  killing  then-  assailants. 
The  opinion  in  this  case  is  very  elaborate  and  very 
interesting. 

One  of  the  most  annoying  forms  of  trespass  to  the 
farmer  is  that  of  hunting  and  fishing.  Many  persons 
seem  to  suppose,  that  by  force  of  some  general  cus- 
tom, or  otherwise,  they  have  a  right  to  hunt  or  fish 

4  Pick.  145.     over  another's  ground  as  they  please  ;  but  this  is  quite 
13  c.  B.  (N.  ,         1    .  •  .•       • 

s.)844.        erroneous,  though  m  some  states  a  previous  notice  is 

5  H.  &  j!Y!)5!  thought  to  be  necessary,  to  enable  the  farmer  to  pros- 
29  Mich.  62(i.  QQ■^J^^Q  a  hunter  or  fisher  so  engaged.    In  all  ordinary 

streams  and  ponds  the  right  to  fish  belongs  solely  to- 
2Couu.  481.    the  person  owning  the  adjoining  land.     If  the  stream 
is  navigable, —  that  is,  if  the  tide  ebbs  and  flows, — 
the  public  have  a  right  to  boat  up  and  down  it,  and  to 
fish  from  their  boats,  but  not  to  go  on  shore  to  do  it. 
But  in  a  stream  where  there  is  no  ebb  and  flow  of  the 
tide,  but  which  is  navigable  in  part,  although  the  pub- 
lic have  the  same  right  to  boat  up  and  down  as  before 


TRESPASSING    ON   THE   FARM.  73 

stated,  probably  they  have  not  to  fish  from  boats,  ex- 
cept by  permission  of  the  riparian  owner,  express  or 
implied.  By  a  very  early  law  in  Massachusetts  and 
Maine,  if  a  farm  contains  a  "' great  pond,"  —  i.e.,  a 
pond  containing  over  ten  acres,  —  the  public  have  a 
right  of  fishing  and  fowling  there,  "  and  may  pass  and 
repass  on  foot  through  any  man's  '  propriety  '  for  that 
end,  so  they  trespass  not  on  any  man's  corn  or 
meadow."  But  a  recent  statute  has  restricted  the 
right  of  the  public  to  fish  in  great  ponds  unless  they 
exceed  twenty  acres,  and  consequently  the  riparian 
proprietor  of  any  such  pond  now  has  the  exclusive  con- 
trol of  the  fisheries  therein  existing.  Pub.  Sts.  c.  9i, 

The  recent  laws  authorizing  fish  commissioners  to 
lease  large  ponds  to  private  parties  may,  of  course,    ^ec.  12.^ 
modify  the  former  rights  of  the  public  therein.  J^^  ^^^-  *^- 

As  to  salt-water  fishing,  the  law  is  somewhat  pecul-  ^^^  Mass.  300. 
iar  ;   for  although  the  owner  of  the  upland  ordinarily 
owns   the  land   down  to  low-water  mark,  as  before  ^^^  Mass.  216. 
stated,  yet  any  other  person   may  go  there,    and  dig 
clams  or  other  shell-fish,  if  he  can  do  so  by  water,  andscush.  347. 

.7  Gray  440. 

without  crossing  the  upland   in  going   or  returning.  37  Me.  472. " 
The  Legislature  may  sometimes  abridge  or  modify  this  144  u&es.  440. 
right,  and  vest  it  exclusively  in  some  person  or  per- 
sons, but  the  ordinary  rule  is  as  above  stated.  3!^  ^"  J*  ^^V 

Statutes  have  recently  been  passed  as  to  clams  and    1^6. 
scallops,  which  to  a  certain  extent  regulate  the  fishing 
for  the  same. 

Another  still  more  common  and  annoying  species  of 
farm  trespassing,  is  that  of  berr3'--picking ;  but  this 
practice,  although  so  customary,  is  clearly  contrary  to 
law.  And  not  only  is  the  trespasser  liimself  liable  to 
the  land-owner,  but  all  who  buy  and  consume  the  ber- 
ries so  picked,  are  in  danger.  The  blueberry-canning 
establishments   of   Jonesport,    Maine,   were   recently 


74  FARM   LAW. 

compelled  to  pay  more  than  one  thousand  dollars  to 
the  owners  of  wild  land,  over  which  the  berry-pickers 
had  long  roamed  without  leave  or  license,  although 
the  latter  had  been  paid  in  good  faith  for  the  berries 
as  they  brought  them  in  and  delivered  them  to  the 

6  M 3.  223.        ^j^yg^g^ 


CHAPTER  XVI. 

OVEEHANGING    TREES. 

The  question  often  arises,  who  owns  the  fruit  of  a 
tree  standing  near  the  boundary  line  between  two 
proprietors.  It  is  generally  supposed  that  the  fruit 
on  the  limbs  overhanging  one's  land  belongs  to  him ; 
but  this  is  an  entire  mistake.  If  a  tree  stands  wholly 
on  your  land,  although  some  of  the  roots  extend  into 
the  soil  of  your  neighbor,  and  derive  support  and 
nourishment  from  his  soil,  he  has  no  right  to  any  of  ii  Conn.  177. 
the  fruit  which  hangs  over  the  line  ;  and,  if  he  at-  25  n.  y.  126. 
tempts  by  force  to  prevent  you  from  picking  it,  he  is 
liable  for  an  assault  and  battery.  48  N.  Y.  201. 

In  one  instance  a  lady,  while  standing  on  the  fence 
picking  cherries  which  hung  over  the  line,  was  forbid- 
den to  do  so  by  the  adjoining  owner,  who  was  at  work 
in  his  garden ;  and,  in  the  scuffle  to  prevent  her,  she 
received  some  bruises  on  her  arm,  for  which  he  had 
the  pleasure  of  paying  the  neat  little  sum  of  a  thou-  ^  b  339 
sand  dollars.  If  your  fruit  falls  into  your  neighbor's 
lot,  you  have,  I  think,  an  implied  license  in  law  to  go 
and  pick  it  up,  *  doing  him  no  unavoidable  damage  ;  ^^^  ^^^  ^^ 
but  this  may  not  be  positively  settled  as  yet.  12  vt.  273. 

If,  however,  a  fruit-tree  stands  directly  in  the  di- 
vision line,  and  is  what  is  called  a  "line-tree,"  both 
parties  own  the  tree  and  fruit  in  common,  and  neither 
can  cut  down  the  tree,  or  seriously  injure  it,  without  12  n.  h.  454. 
being  responsible  to  the  other.  25  x^  y."  123! 

Sometimes  pereons  are  tempted  to  poison  or  secretly 
kill  a  neighbor's  tree  of  some  kind,  which  stands  near 
the  fence,  and  casts  a  baneful  shade  on  their  garden 
plot :  but  this  is  dangerous  business ;  and  the  party 


76  ^     FAKM   LAW. 

doing  so,  in  Massachusetts  or  Maine,  may  possibly 
find  himself  inside  the  county  jail  for  a  twelvemontli, 
where  the  i-ooms  are  apt  to  be  small,  and  not  always 
very  clean  !  The  safer  way  in  such  cases  is  to  cut  off 
the  limbs  which  hang  over  your  side,  or  dig  down  and 
cut  off  the  roots,  which  undoubtedly  you  have  a  legal 
right  to  do ;  but  it  would  not  be  safe  to  use  the  limbs 
for  firewood,  or  otherwise  convert  them  to  your  own 
use,  lest  you  have  to  pay  their  value,  more  or  less. 

While  speaking  of  "overhanging"  trees,  I  may  also 
add  a  word  about  shade  trees  entirely  on  your  own 
ground.  Every  man  has  a  right  to  cover  his  own 
ground  with  fruit,  forest,  or  shade  trees,  as  "thick  as 
they  can  stand."  And  if  so  be  a  neighbor's  house  is 
so  near  the  line  that  the  trees  make  his  house  damp 
or  unhealthy,  he  has  not  a  right  therefore  to  cut  down, 
or   prune   out   the   same,    but   must  bear  the  conse- 

99  Mass.  598.   quences  as  well  as  he  can. 

One  more  caution  I  must  give  you  in  regard  to 
overhanging  trees  ;  and  that  is,  if  you  have  a  tree  near 
your  line,  which  is  poisonous  to  animals,  as  the  yew 
tree,  for  instance,  and  you  let  the  limbs  hang  over  the 
fence  so  that  a  neighbor's  cow  browses  them,  and  dies 
in  consequence,  you  are  liable  to  pay  for  her,  for  you 
must  not  allow  such  dangerous  things  to  spread  from 

4  Ex.  i>It.  5.  your  premises.  I  suppose  it  would  be  different  if  the 
tree  stood  far  away  from  the  boundary  line,  and  the 
cow  strayed  into  your  premises,  and  there  committed 
suicide :  the  verdict  might  then  be,  "served  the 
owner  right ;"  he  had  no  business  to  let  her  trespass 
on  you.  That  was  the  case  once  where  a  man's  cow 
sti-ayed  into  a  neighbor's  sugar  orchard,  and  there 
drank  a  bucket  full  of  maple  syrup,  which  caused  her 

1  Cow.  78.  death.  Her  owner  had  no  redress.  I  suppose  it  might 
be  the  same  if  cows  break  into  your  potato  field,  and 
kill  themselves  eating  potato  tops,  on  which  you 
have  used  "Paris  green." 


CHAPTER  XVII. 

PKOPEKTY  EXEMPT  FOU  DEBT. 

As  a  general  rule  no  cla,ss  of  people  pay  their 
debts  better  than  the  Massachusetts  farmer ;  but  niis- 
fortuiie  may  overtake  him,  as  well  as  others,  and  he 
may  sometimes  wish  to  know  what  property  he  owns 
which  cannot  be  taken  by  law  to  pay  his  debts. 
Therefore  a  few  words  on  that  subject  may  not  be 
amiss. 

1.  He  can,  if  a  householder,  liaving  a  family^  re- 
tain a  homestead  for  a  residence,  of  the  value  of  $800. 
But  a  bachelor,  (having  no  right  to  have  a  famil}-,) 
couldn't  very  well  claim  a  homestead.  lO  Alien,  425. 

On  the  other  hand  a  married  man  who  had  once  ac- 
quired a  homestead  would  not  lose  it  on  the  death  of  12  Allen,  34. 
his  wife  and  all ,  his  childi-en.     But   if  two   farmers 
own  a  farm  jointly,  neither  has  any  homestead   in  it.  0  Allen,  427. 

In  order  for  any  one  to  acquire  a  homestead,  the 
deed  to  him  should  set  forth  that  the  estate  was  to  be 
held  as  a  homestead  or  he  should  have  filed  a  written 
declaration  to  that  effect  in  the  Registry  of  Deeds. 

Of  personal  property  a  sheriff  cannot   seize 

1.  The  necessary  wearing  apparel  of  a  debtor,  or 
of  his  wife  and  chikh-en.  This  would  also  include 
the  materials  for  such  aj^parel  in  the  process  of  man- 
ufacture. 10  i^iet.  506. 

2.  One  bed,  bedstead,  and  the  necessary  bedding, 
for  every  two  persons  of  his  family  ;  one  'won  stove 
used  to  warm  his  house  and  fuel  for  it,  to  the  value  of 


78  FARM   LAW. 

3.  Other  Louseliold  furniture,  necessary  for  a  farm- 
er and  his  family  to  the  amount  of  $300  ;  and  the 
word  "necessary"  is  generally  construed   quite  liber- 

4Cush.350.         11 
11  Allen,  582.  ^^^J- 

4.  Bibles,  school-books  and  library  to  the  value  of 
150. 

5.  One  cow,  six  sheep,  one  swine,  and  two  tons 
of  hay.  The  word  "  cow  "  applies  also  to  a  young 
heifer  which  has  never  given  milk.     If  you  have  two 

8  Aiiln,'583.*  COWS  you  may  select  which  you  will  keep.  And  one 
2^Anen^n9  ^wine  is  exempt,  though  it  has  been  killed  and 
i34Massr40i.cbessed. 

15  Mass.  ::05. 

6.  Tools,  implements,  and  fixtures  necessary  for 
carrying  on  your  trade  or  business,  not  over  $100  in 
value.  The  words  "  tools  and  implements  "  mean 
small  articles  of  simple  construction  and  moderate 
cost,  which  are  ordinarily  used  by  hand,  such  as 
shovels,  pick  axes,  hoes,  dung  forks,  etc.,  not  only  for 

7  Gray,  67.  oiie's  self,  but  for  all  one's  men.  Such  articles  as  a 
farm  cart,  tip  cart,  cart  harness,  whip,  farm  pung, 
and  a   buffalo   robe,    have     been  declared   to  be  not 

134  Mass.  401.  exempt  from  attachment.  Much  less  would  horses  or 
oxen  come  witliin  this  clause. 

7.  Family  provisions  to  the  amount  of  $50. 

This  language  includes  family  vegetables  still 
growing  in  the  ground,  as  well  as  after  they  have 
been  harvested  and  stored  in  the  cellar.  But  as  it 
does  not  exempt  vegetables,  etc.,  raised  for  sale,  if  so 
be  you  have  a  larger  quanity  on  hand  than  the 
exemption  covers  when  the  officer  comes  with  his 
execution,  you  should  select  $50  worth,  and  let  the 
5  Allen,  158.   officer  take  the  rest. 

8.  A  family  pew  in  church. 

9.  The  boat,  fishing  tackle  and  nets  of  a  fisher- 
man, to  the  value  of  $100  and  as  a  farmer   may   also 


PROPERTY  EXEMPT   F0R|!]DEBT.  79 

be  a  fisherman,  he  could  undoubtedly  claim    these  ar- 
ticles as  if  he  were  only  a  fisherman. 

10.  Rights  of  burial  and  tombs  in  a  cemetery. 

11.  A  family  sewing  machine,  if  not  worth  over 
flOO. 

Thus  it  will  be  seen  property  of  over  $2000  value 
in  the  aggregate,  is  exempt  from  execution  or  debt ; 
but  the  better  way  is  for  the  farmer  not  to  get  into 
debt,  and  then  he  won't  care  to  know  whether  much 
or  little  is  beyond  the  officer's  power  to  touch. 


18  Q  B.  560 


CHAPTER   XVIIL 

BEWARE    OF    TRAPS. 

I  DO  not  propose  to  discuss  at  length  the  general 
laws  of  purchase  and  sale,  or  of  deceit  and  warranty, 
about  which  so  much  may  be  said  ;  but  there  are  two 
phases  of  special  interest  to  the  farmer.  One  is  the 
disappointment  resulting  from  the  purchase  of  impure 
or  spurious  garden-seeds.  It  is  now  well  settled,  that 
if  a  dealer  in  seeds  sells  an  article  marked  and  put  up 
under  a  certain  name,  and  it  is  so  billed  to  the  pur- 
chaser, tills  amounts  to  an  absolute  warranty  or  guar- 
anty that  the  seeds  are  what  they  were  bought  and 
sold  for  ;  and,  if  they  turn  out  not  to  be,  the  farmer 
has  a  remedy  against  the  seller  for  the  money  he  paid 
for  the  seed.  And  this  is  so,  although  the  seedsman 
was  honest  in  the  sale,  and  bought  them  for  exactly 
what  he  sold  them  for  ;  and  the  seller  would  have  a 
remedy  back  on  the  person  who  sold  to  him.  But 
merely  to  get  back  the  money  paid  for  the  seed  would 
fall  far  short  of  the  loss  to  the  farmer.  His  time, 
labor,  fertilizers,  profits  on  his  crop,  are  all  gone  ;  and 
the  question  has  been  much  agitated,  whether  the 
seedsman  is  liable  for  all  this  loss.  And  it  is  now 
generally  understood,  that  when  he  either  expressly 
warrants  the  seed  to  be  of  a  particular  kind  or  variety, 
or  when  he  so  sells  it  without  any  reservation  or  limi- 
tation, and  thus  creates  an   implied  warranty,  he  is 


BEWARE   OF   TEAPS.     .  81 

liable  for  all  the  damages  directly  flowing  from  the 
farmer's  use  of  such  seed. 

In  one  instance  a  market-gardener  bought  of  a  seeds- 
man "early  strap-leafed,  red-top  turnip-seed,"  but 
which  proved  to  be  "Russia  late,"  not  salable  in  mar- 
ket, and  only  lit  for  cattle  ;  and  he  was  allowed  to  re- 
cover of  the  seller  the  difference  between  the  value  of 
the  crop  which  was  raised  and  a  crop  of  early  turnips 
on  the  same  soil,  even  though  the  seedsman  honestly 
thought  the  seed  was  as  represented.  And  in  case  7  Vroom,  262. 
the  farmer  is  so  imposed  upon,  and  the  seed  proves  34  n.  y.  634. 
entirely  worthless,  and  his  crop  of  no  value,  he  can 
make  the  seedsman  pay  not  only  the  cost  of  the  seed, 
but  also  for  all  the  labor  incurred,  and  the  fair  profit 
he  would  have  had  from  the  crop,  had  the  seed  been 
what   it   was    represented   to   be.     In    one  case   the  69  N.  Y.  62. 

9  Hun  556. 

Shaker  Society  at  Watervliet,  N.  Y.,  had  to  pay  heavy  78  N.  y.  393. 
damages,  because  a  lot  of  seed  which  they  sold  as 
"Bristol  cabbage  seed,"  came  up  a  wild  cabbage  run- 
ning all  to  stalks  and  leaves,  caused  by  the  fact  that 
they  set  their  Bristol  seed  cabbages  in  the  spring,  near 
several  rows  of  "Red  Dutch,"  and  the  two  varieties 
intermixed,  producing  a  worthless  cross.  To  avoid  ^  ^™'  *^^- 
this  serious  liability,  seedsmen  at  the  present  day  very 
often  print  upon  their  seed-packages  that  they  do  not 
warrant  any  seed  they  sell,  which  may  perhaps  re- 
lieve them  from  their  responsibility,  unless  they  knew 
the  seed  was  not  true  to  name. 

The  other  subject  to  which  I  alluded  is  the  "light- 
ning-rod nusiance,"  so  called.  For  several  years  past 
the  agricultural  community  has  been  overrun  by 
swarms  of  unprincipled  men  offering  for  sale  "im- 
proved lightning-rods,"  "patent  pitch-forks,"  "white- 
wire  clothes-lines,"  "force  pump  washers,"  etc.  With 
persuasive  cunning  they  prevail  upon  the  farmer  to 
accept  the  agency  for  the  sale  of  the  article   in  his 


82  FAKM    LAW. 

town  or  county,  with  reckless  assurance  of  the  profits 
to  be  realized  therefrom.     They  ask  him  to  sign  a 
printed  contract  for  that  purpose,  which  he  unsus- 
pectingly  does.     The   articles   either  never  come  to 
hand,  or,  if  so,  the}'  are  worse   than  useless  ;   and  the 
agent  thinks  that  is  the  end  of  the  transaction,  and 
writes    to   have   the    rulAish   taken    away.      A    few 
months  afterward  another  man  comes  round, — a  con- 
federate rascal  Avith    the  former, — and  presents  the 
farmer  with  his  printed  promissory  note  for  a  hundred 
dollars  or  more,  and  pretends  he  bought  the  same  in 
good  faith,  and  demands  payment.     The  signature  to 
the  paper  is  genuine,    and  the  farmer  is  amazed  to 
know  how  it  came  there.     Nothing  but  a  law-suit  will 
reveal  the  fact  that  the  strip  of  paper  now  presented 
has  been  cut  off  from  the  bottom  of  his   agency  con- 
tract, and  made  to  appear  a  very  different  affair  from 
the  real  one,  and  the  present  owner  is  always  ready  to 
swear  he  is  an  innocent  holder  for  value,  and  without 
any  knowledge   about  the  origin  of  the  note  ;  having 
■55  ind.  140.     taken  legal  advice,  that,  if  so,  he  can  probably  recover 
64  ind."  120.'     the  amount  of  the  note,  notwithstanding  the  outra- 
66  N  ^'  illf  geous  fraud,  as  has  been  frequently  decided.    While  in 
many  states,  so  anxious  is  the  law  to  protect  the  hon- 
^j^ns?kiT^'  est  farmer  from  the  schemes  of  such  an   unjjrincipled 
^TM^  *  ^"  ■^'  gang  of  swindlers,  that  it  has    decided,  that   if  the 
54  111.  196.       sisrner  was  not  really  guilty  of  negligence,   in  the  eye 

22  Mich.  479.       *  J    o         J  o    o  ^  J 

51  Mo.  245.      of  the  jury,  in  being  misled  by  such  a  rogue,  he  is  not 
370.  bound  to  pay  the  note  to  anybody,  indorsee  or  not. 

The  honest  farmer  is  in  the  hands  of  a  set  of  accom- 
plished villains  ;  and  in  many  instances  their  plans 
have  been  so  well  laid,  that  either  he  is  compelled  to 
pay  the  whole  note,  or  to  avoid  the  expenses  of  a  law- 
suit, compromise  the  claim.  Beware  of  these  mis- 
creants ;  shun  them  as  you  would  a  rattlesnake.  If 
there  is  one  place  hotter  than  another  in  the  world  to 


BEWARE   OF    TRAPS.  83 

come,  they  deserve  that  corner,  hving  as  they  do  upon 
premeditated,  cold-blooded  fraud  and  deception. 

I  have  thus  imperfectly  touched  upon  some  of  the 
leading  rights  and  liabilities  of  farmers ;  and  if,  in 
this  brief  space,  I  have  been  able  to  impart  any  valu- 
able information,  or  save  you  from  the  many  entangle- 
ments of  the  law,  or  even  to  interest  you  but  for  the 
passing  hour,  my  purpose  has  been  accomplished. 


INDEX. 


THE   FIGUBKS   AT  END   OF   EACH   LINE   DENOTE  THE    PAGE. 

ACCEPTANCE, 

Should  be  of  the  exact  terms  of  the  offer,  10. 
Should  be  strictly  vrithin  time  allowed  by  offer,  10. 
By  letter,  11. 

ACRES, 

Deficiency  in  number  of,  14. 

Quantity  mentioned  in  deed,  13. 

Intentional  overstatement  of  quantity,  14. 
AGREEMENT, 

As  to  crops,  if  oral  would  not  be  valid,  19. 

Consequences  to  laborer  if  he  breaks  it,  24, 
ANIMALS, 

If  known  to  be  vicious,  owner  liable  for  damage  done  by,  50. 

Must  not  run  loose  in  highway,  49. 

If  vicious  and  kept  unconfined,  owner  is  guilty  of  negligence,  51. 

May  be  bought  and  sold  by  oral  bargain,  51. 

In  buying  be  sure  seller  is  owner,  52. 

Of  over  fifty  dollars'  value  must  be  bought  or  sold  how,  51. 

Though  astray,  ownership  is  not  lost,  52. 

Wild,  when  tamed,  are  private  property,  52. 

Cannot  be  killed  for  merely  trespassing,  71. 

Has  a  right  to  kill  if  in  pursuit  of  his  own,  71. 
APPLES, 

In  the  road  belong  to  whom,  28. 
ARREST, 

Of  laborer  excuses  from  farm  work,  25. 
BARGAIN, 

Closed  by  deposit  of  letter  of  acceptance,  11. 

Oral,  for  farm  with  part  payment,  10. 

Oral,  gives  no  permanent  right  of  way,  31. 

Oral,  good  for  animals,  51. 
BARN, 

Rights  as  to  moving  on  highway,  29. 
BEES, 

"Wild,  belong  to  land-owner,  52. 

If  a  swjtrm  leaves  to  whom  they  belong,  52. 


86  INDEX. 

BELL, 

Attached  to  building  passes  with  it,  21. 

BERRIES, 

Persons  picking  them  may  be  trespassers,  73. 

BLINDS, 

If  old,  go  with  house ;  if  new,  contra,  20. 

BOARDS, 

"When  loose  in  the  building  do  not  pass,  18.. 

BOND, 

For  a  deed  should  be  taken,  10. 

BONFIRE, 

Farmer  may  build  on  his  own  land,  62. 
Must  be  carefully  watched,  62. 

BOUNDARIES, 

Three  circumstances  determine  them,  13, 
Lines  determined  by  monuments,  13. 
More  important  than  number  of  acres,  14. 
Fraudulent  statement  of,  14. 
If  to  a  tree  or  rock  run  to  center  of  it,  15. 

BROOK, 

Boundary  line  is  in  middle  of  current,  15. 

BUILDINGS, 

Need  not  be  mentioned  in  deed,  20. 

Include  old  window  blinds,  not  new  ones,  20. 

Include  lightning  rods,  21. 

When  personal  property,  if  ever,  20. 

What  part  of  inside  furnishing  passes  with  it,  21. 

BULL, 

Owner  responsible  for  damage  caused  by,  50. 

CAT, 

May  be  shot  for  killing  chickens,  71. 

CATTLE, 

Laborer  must  feed  on  Sunday,  25. 
May  be  fed  in  the  road  by  whom,  28,  29. 
Who  is  responsible  for  letting  them  out,  41. 
Injured  on  railroad  track  who  is  responsible  for,  36. 

responsibility  depends  on  circumstances,  36. 
Liability  for  stray,  40 . 
Owner  not  liable  for  damage  done  by  them  when,  40. 

and  when  liable,  40. 
Straying  in  highway  owner  responsible  for  when,  41. 


INDEX.  87 

CATTLE, 

When  lawfully  in  the  highway,  41. 

when  not,  41. 
If  injured  by  poor  fence,  result,  42. 
If  trespassing,  may  be  put  in  pound,  46. 

may  be  turned  into  highway,  46. 

owner  may  be  sued,  47. 

CATTLE-BAEN, 

What  it  includes,  21. 

CHILDREN, 

Cannot  pick  up  apples  in  the  road,  2S. 

CISTERN, 

Passes  with  house  ,'21. 
CLAMS, 

May  be  dug  by  the|public,  73. 
COMPOST, 

Usually  passes  with  the  farm, {19. 

CONSENT, 

Mere  consent  never  gives  right  of  way,  32. 

CONTRACT, 

By  letter,  11,  12. 

Result  if  laborer  breaks  it,  23. 

To  work  for  more  than  a  year  must  be  in  writing,  2G. 

When  not  valid,  result,  26. 

CONVEYANCE, 

When  a  court  of  equity  will  compel  one,  10. 
CROPS, 

Growing,  pass  with  farm  when,  19. 
CUSTOM, 

Validity  in  law,  16. 
DAMAGES, 

May  be  recovered  of  laborer  when,  '•?4. 

Caused  by  leaving  gate  open  who  is  respousiblelfor,  33. 

May  be  recovered  by  Jthird  person  frcm  owner  of  cattle,  when,  40. 

May  be  recoveredjof  owner  of  trespassing  cattle,  40. 

Must  be  paid  on  impounded  animals,  48. 

May  be  recovered  [  of  owner  of   yicious  animal  known   to  be  such,  49. 

Double,  sometimes  for  bitejof  dog,  54. 

May  be  recovered  of  trespasser,  68. 

May  be  recovered  of  purchaser  of  berries'picked  by  trespassers,  73. 

"  DEALER'S  TALK," 

Its  value  in  eye  of  the  law,  15. 


88  INDEX. 

DECEPTION', 

No  legal  consequences  attach  when,  14. 
When  seller  is  liable  for,  15. 

DEED. 

Should  always  be  recorded,  12. 

Must  have  seal  of  grantor  attached,  12. 

Scroll  instead  of  seal  good  in  some  states,  12 

Though  neither  witnessed,  nor  recorded,  is  good  between  parties,  12. 

What  land  it  includes,  13. 

When  it  extends  to  low-water  mark,  17. 

When  it  gives  the  exchisive  right  to  seaweed,  16. 

When  it  includes  to  high-water  mark  only,  17. 

Includes  growing  crop  when,  19. 

Need  not  mention  buildings,  20. 

Same  riiles  as  to,  apply  to  mortgages,  22. 

Usually  includes  to  middle  of  road,  28. 

Need  not  mention  right  of  way  to  a  back  lot  to  include  it,  32. 

If  given  to  railroad  company,  conveys  the  land  in  fee,  34, 

Bounded  by  railroad  conveys  to  center  of  road-bed,  36. 

DITCH, 

Rules  and  rights  as  to,  65. 
DOG, 

May  be  used  to  drive  out  trespassing  cattle,  46. 

Double  damages  given  sometimes,  if  he  bites,  54. 

Though  usually  peaceable,  owner  is  responsible  for  his  acts,  55. 
even  if  dog  be  licensed,  55. 

May  be  killed  when,  57. 

Safe  on  his  owner's  premises,  57. 

Must  not  be  poisoned,  58. 

No  one  has  ownership  in,  in  some  states,  58. 
EASEMENT, 

Acquired  by  railroads  in  their  road-bed,  34. 
EMPLOYER, 

No  set  off  against  him  when,  24. 

Improper  treatment  by  an  excuse  for  leaving,  25. 

If  laborer  leaves  for  good  caiise,  must  pay,  24. 

Cannot  require  unnecessary  work  on  Sunday,  25. 

When  he  must  pay  for  work  done,  25. 

Use  of  harsh  language  by  him,  25. 

May  require  of  hired  man,  damages  the  latter  has  caused,  (iO. 

Not  liable  for  injuries  by  his  man  to  fellow-workmen,  GO. 

Liable  to  his  workmen  for  his  own  negligence,  61. 

ENTICEMENT, 

Person  enticing  liable  therefor,  27. 
EPIDEMIC, 

In  vicinity,  good  excuse  for  leaving,  25, 


INDEX. 

EXCUSES, 

What  are  sufficient  for  leaving,  25. 

FAMILY, 

If  disturbed  by  a  dog,  he  may  be  killed,  57. 

FARM, 

How  to  buy,  9. 

Oral  bargain  for  not  binding,  9. 

How  far  it  extends,  13. 

"What  a  deed  of  includes,  18. 

No  right  for  stranger  to  wander  over  it,  32. 

Railroads  through ,  34. 

F.'iRMER, 

Owns  half  the  road,  28. 

Cannot  interfere  with  public  travel  in  the  road.  29. 
Liability  for  leaving  things  in  the  road,  30. 
Does  not  lose  his  title  to  his  stray  beasts,  52. 
May  take  damages  by  dogs  from  dog  tax,  56. 

or  may  sue  owner  for  double  damages,  54. 
Liable  for  the  injuries  his  men  do,  59. 
Cannot  use  all  the  water  of  a  stream,  G4. 
Cannot  flow  land  above  his  own,  fi4. 
May  keep  surface  water  on  his  own  land,  65. 

or  may  turn  it  on  to  his  neighbor's,  66. 
Should  put  up  notice  to  trespassers,  69. 
Must  not  set  spring-guns  for  trespassers,  70. 
Liable  for  damages  to  trespassers  when,  70. 
May  recover  for  poor  seed,  80. 

and  sometimes  damages  beside,  81. 
His  liability  on  a  note  obtained  by  fraud,  82. 

FENCES, 

One  seven  feet  wide  is  lawfvil,  15. 

Conveyed  with  the  farm,  18. 

No  one  has  a  right  to  deface  it,  29. 

On  highway  must  be  placed  where,  30. 

Between  neighbors  where,  30. 

In  front,  must  end  where,  30. 

Along  railroad  must  be  maintained  by  the  comjjany  wlien.  3l). 

and  when  not,  36. 
Adjoining  owners  musi  maintain  in  equal  shares,  39. 
Proper  legal  height,  41. 
Proper  materials,  42. 
What  will  answer  for  a,  42. 
Wire,  responsibility  for  accident  therefrom,  42. 
Division,  may  be  placed  one  half  each  side  of  line  42. 
Must  be  kept  in  repair  throughout  the  year,  43. 
Difference  as  to,  between  railroads  and  individuals,  44. 
Duty  of  building  one  a  statute  duty,  44. 


89 


90  INDEX. 

FENCES, 

Railroad,  must  be  "  suitable  "  merely.  44. 

If  destroyed  by  hired  man,  his  employer  must  pay  damages,  59. 

FENCING  MATERIAL, 

If  never  had  been  attached  to  soil  does  not  pass,  18. 
If  had  been  once  used,  passes  with  farm,  18. 

FINE, 

May  be  imposed  on  owner  of  straying  animals,  48. 

FIRE, 

Caused  by  locomotive  sparks,  liability  for  formerly,  37. 

liability  for  now,  37. 
One  who  makes  it  is  responsible  therefor,  62. 

FISH, 

In  ponds  belong  to  adjoining  owner,  72. 
In  navigable  stream  to  public,  72. 

FORFEIT, 

When  laborer  forfeits  wages,  23. 
None  of  wages,  when,  24. 

FRAUD, 

Actionable,  and  the  contrary,  15. 

FRUIT, 

Stealing  of,  a  crime,  70. 

"What  may  be  done  to  thief,  70. 

Belongs  to  the  tree  on  which  it  hangs,  75. 

If  it  falls  into  neighbor's  lot  one  may  enter  and  pick  it  up,  75- 

On  line  tree  belongs  to  both  adjoining  owners,  75. 

FURNACE, 

If  brick,  goes  with  house,  21. 
If  portable,  some  doubt,  21. 

GAS-FIXTURES, 

Do  not  pass  with  house,  21. 
GATES, 

May  be  erected  between  highway  and  right  of  way,  33. 

GRASS, 

In  the  road  who 'may  cut,  28. 
HELP, 

Hiring  of,  23. 
HENS, 

Neighbor's  must  not  be  killed, 'though  in  one's  garden,  70. 
HIGHWATER]  MARK, 

Private  ownership  extends  to,  16. 


INDEX.  91 


HIGH-WAY, 

Trespassing  cattle  may  be  turned  into.  46. 

Wash  from,  may  be  turned  on  to  farmer's  land,  66. 

HIGHWAY  SURVEYOR, 

Rights  in  the  road,  28. 
HOP-POLES, 

If  once  used,  pass  with  land,  18. 
HORSE, 

Cannot  be  hitched  to  your  trees  in  the  road,  29. 

Owner  may  be  liable  for  damage  by,  49. 

Run  away,  owner  liable  when,  51. 

Result  if  one  buys  a  stolen,  52. 

Owner  not  liable  for  injury  caused  by  when,  60. 

HUNTER, 

Ha.s  no  legal  right  in  the  wild  animal  hunted,  53. 
Owns  what  is  caught  in  his  traps,  53. 
Responsible  for  fires  he  may  build,  62. 
Has  no  right  to  wander  over  farmer's  land,  72. 

IMPROVEMENTS, 

If  made  after  mortgage,  belong  to  the  land,  22. 
INSURAIsCE, 

May  be  obtained  by  railroad  on  property  along  its  route,  38. 
ISLANDS, 

In  a  river  belong  to  whom,  15. 
JURY, 

Decide  as  to  cause  for  leaving,  26. 
KEEPER, 

Of  a  dog  liable  for  damage,  56. 
KETTLES, 

Set  in  brick  work  pass  with  farm,  21. 

LABOR, 

What  rate  of  wages  due  for,  23. 
Consequence  of  engagingto  "for  a  year,"  23. 
Entitles  to  paypient  when,  24. 

LABORER, 

Result  of  his  leaving  wrongfully,  25. 

If  discharged  by  his  own  fault,  24. 

Excused  by  his  arrest,  25. 

Result  of  his  leaving  with  good  cause,  25. 

Harsh  language  to  him  no  excuse  for  leaving,  25. 

Quarrel  with  another  no  excuse  for  leaving,  25. 


92  INDEX. 

LABORER, 

When  his  contract  to  work  is  not  binding,  26. 

If  under  twenty-one  not  bound,  26. 

Effect  of  his  false  statement  of  his  age,  26. 

Under  one  form  of  contract  may  leave  when  he  pleases,  26. 

Liable  for  a  "strike,"  27. 

Responsible  to  his  employer  for  damages  he  has  caused,  60. 

Cannot  recover  from  master  for  injury  caused  by  fellow-workman,  60. 

May  recover  of  employer  for  latter's  negligence,  61. 

LAKE, 

Public  have  rights  in  a,  16. 
Boundary  line  at  low- water  mark,  16. 

LAND, 

Includes  standing  trees,  18. 

If  wild,  duty  of  fencing,  43. 

Manner  and  result  of  making  it  common,  43. 

Adjoining,  may  be  used  for  building  fence,  44. 

No  right  of  way  acquired  in  by  twenty  years  use  simply,  67. 

LAND-OWNER, 

May  re-occupy  abandoned  road-bed,  36. 

Must  keep  his  cattle  off  railroad  track  when,  36. 

Was  bound  to  keep  in  his  own  cattle,  39. 

Must  bear  half  expense  of  fencing,  39. 

Have  common  interest  in  division  fence,  42. 

Of  wild  land,  not  obliged  to  fence,  43. 

Remedy  for  surface  water  turned  on  to  his  land,  Q6. 

If  he  permits  crossing  his  laud  no  right  of  way  acquired,  67. 

Does  not  own  the  shell-fish  on  the  shore,  73. 

LESSEE, 

Cannot  take  away  mamire,  19. 
May  remove  his  gas-iixtures,  21 

LETTER, 

Offer  to  buy  or  sell  by,  11. 
LIABILITY, 

Of  an  owner  to  two  different  purchasers,  11. 
LICENSE, 

To  move  building,  does  not  relieve  from  liability,  29. 
LIGHTNING, 

Fire  caused  by  no  one  responsible  for,  63. 
LIGHTNING  RODS, 

Go  with  buildings,  21. 
LUMBER, 

Of  an  old  building  goes  with  land,  20. 


INDEX. 

MANTEL  PIECES, 

Pass  witli  house  when,  21. 
MANURE, 

Passes  with  the  farm  ordinarily,  19. 
MILL, 

Cider,  goes  with  the  orchard,  21. 
MILL-POND, 

Boundary  line  is  in  middle  of,  16. 
MONUMENTS, 

Control  the  length  of  boundary  lines,  13. 

More  important  than  number  of  acres,  14. 
MORTGAGEE, 

What  he  may  take  under  foreclosure.  22. 
MORTGAGES, 

Same  rules  apply  as  to  deeds,  22. 
NECESSITY, 

Gives  right  of  way,  31. 
NEGLIGENCE, 

As  to  vicious  animals,  what  is,  51. 

In  regard  to  lire  renders  liable  when,  62. 

If  none  on  part  of  signer  of  note  he  need  not  pay  it,  82. 
NEIGHBOR, 

Cannot  use  one's  well  without  permission,  29. 

Cannot  pick  fruit  from  one's  overhanging  tree,  75. 
NOTE, 

To  laborer,  must  be  paid  when,  23. 
OFFER, 

Not  binding  until  accepted,  9. 

even  though  time  is  given,  9. 
ORGAN-GRINDER. 

Liable  for  trespass  when.  29. 
OWNER, 

Of  trespassing  cattle  has  no  claim  on  one  who  drives  them  out  of  his 
field,  46. 

Liable  for  damage  done  by  his  stray  cattle  on  highway,  49. 

Liable  for  damages  done  by  vicious  animal,  50, 

if  done  to  one  lawfully  on  his  land,  50. 

Of  vicious  animal  must  keep  him  confined,  51. 

Of  dog  liable  for  double  amount  of  damage  caused  by  him,  54. 

Of  hens  can  recover  if  they  are  killed  by  a  neighbor,  70. 
PAYMENT, 

Result  of  pajring  by  the  month,  23. 

Result  when  nothing  has  been  paid  to  laborer,  23. 

Must  be  made  by  railroad  company  when,  35. 

For  stolen  beast  does  not  pass  title,  52, 


9a 


-94  INDEX. 

PERSONAL  PROPERTY, 

"Wood  cut  and  corded  up  is,  18. 
PIGS, 

If  root  up  the  road,  owner  is  responsible,  28. 
PIG-PEN, 

Cannot  be  put  in  tlie  road,  30. 
POISON, 

Must  not  be  given  to  dogs,  58. 

or  other  animals,  58. 

Must  not  be  given  neighbor's  hens,  70. 

Must  not  be  applied  to  neighbor's  tree,  75. 

POND, 

Artificial,  boundary  line  in  middle  of,  16. 

Natural,  boundary  line  at  low-water  mark,  16. 

Of  over  ten  acres  public  have  rights  in,  68. 
POST  OFFICE, 

Deposit  of  letter  of  acceptance  in,  11. 
POUND, 

Trespassing  cattle  may  be  put  in,  46. 

Proper  method  of  putting  animals  in,  47,  48. 

Towns  liable  for  not  keeping  in  repair,  48. 
PRESCRIPTION, 

Gives  right  of  way  when,  31. 

and  how,  32. 

PRICE, 

Consequences  if  part  be  paid,  10. 
PUBLIC, 

Have  superior  rights  in  the  road,  28. 
PUMPS, 

Part  of  the  building,  21. 
PURCHASE, 

Of  a  farm  must  be  in  writing,  9. 

Representations  that  will  not  excuse  from,  14. 

PURCHASER, 

Released  from  bargain  when,  14. 
PURCHASE  MONEY, 

"When  paid  at  rate  of  so  much  per  acre,  14. 
RAILROADS, 

Acquire  only  an  easement  in  their  road-bed,  34. 

May  cut  trees  which  are  in  the  way,  35. 

Can  take  only  necessary  land,  35. 

If  abandoned  land  reverts,  36. 

Mixst  maintain  fences  along  it,  36. 


INDEX.  95 

RAILROADS, 

Liable  for  damage  to  adjoining  owner's  cattle  when,  36. 

and  when  not  liable,  36. 
Not  responsible  for  defective  fence,  except  to  adjoining  owners,  unless  neg- 
ligent, 37. 
Liable  for  fires  caused  by  locomotives,  37. 
May  insure  the  property  along  its  route,  38. 
Duties  as  to  fences  different  from  private  persons,  44. 
Not  liable  for  cattle  killed,  if  unlawfully  straying,  44. 

RANGE, 

Passes  with  house,  21. 
REDRESS, 

None  for  certain  misrepresentations.  14. 
"REFUSAL," 

Dangerous  to  rely  on,  10. 
REMEDY, 

Often  worthless  against  laborer,  26. 

Against  one  who  entices  laborer  away,  27. 

REMOVAL, 

Crops  or  manure  may  be  removed  when,  19. 
REPRESENTATIONS, 

Of  seller  that  will  not  make  the  sale  invalid,  14, 
RETRACTION, 

Owner  may  retract  offer  at  any  time  before  acceptance  and  he  is  notified 
thereof,  9. 

RIVER, 

Unnavigable,  island  in,  15. 

Boundary  line  is  in  middle  of  current,  15. 

Consequences  when  course  changes,  15. 

ROAD, 

Middle  of,  the  dividing  line,  28. 
Rights  in,  28. 

How  public  must  use  it,  28. 
":L~;~.  If  discontinued,  what  becomes  of  the  land,  30. 

SCROLL, 

Used  instead  of  seal  in  some  states,  12. 
SEAL, 

Necessary  on  a  deed,  12. 

SEASHORE, 

"  The  flats,"  to  whom  they  belong,  17. 
Whenjthe  grantee  owns  to  low-wator  mark,  13. 


96  INDEX. 

SEA-WEED, 

When  it  belongs  exclusively  to  owner  of  shore,  IG. 
Any  one  may  take  possession  of  it,  16. 

SEEDS, 

Are  warranted  to  be  what  they  arc  bought  and  sold  for,  80. 
If  not  warranted,  liability  may  not  attach  to  seller,  81. 

SELLER, 

Can  take  away  loose  boards,  18. 

SET-OFF, 

When  laborer  has  no  right  to,  24. 

SEVERANCE, 

The  collecting  of  manure  into  a  heap  may  be  a,  19. 

SHEEP, 

If  worried  by  dog,  he  may  be  killed,  57. 

Killed  by  dogs,  owner  of   one  Idog  liable  only  for  those  killed  by  his 
dog,  58. 

SICKNESS, 

A  good  excuse  for  leaving  work,  25. 

SINKS, 

Part  of  the  building,  21. 

SNOW, 

May  give  right  to  traveler  to  turn  out  upon  one's  land,  29. 

SPECIFIC  THING, 

Result  of  breaking  engagement  to  do,  24. 

STATUES, 

Pass  with  farm  when,  21. 

STOVE, 

Does  not  pass  with  house,  21. 

STREAM, 

Rights  of  proprietors  on,  15. 
May  be  a  sufficient  legal  fence,  42. 
Through  farm,  farmer  may  use,  64. 
Course  on  one's  own  land  may  be  changed,  64. 
If  obstructed,  remedy  of  owner's  above,  64. 
If  navigable,  public  may  fish  in,  73. 

STRIKE, 

Legal  liability  of  parties  involved,  27. 

SUNDAY, 

Unnecessary  work  need  not  be  done  on,  25. 
Necessary  work  must  be  done  on,  25 . 


INDEX.  97 

TEAM, 

If  driven  by  hired  maii,  liis  employer  is  responsible  when,  59. 
If  borrowed  by  servant,  he  is  responsible  therefor,  60. 

TIDE, 

Things  washed  vip  by,  10. 
TIMBER, 

Of  an  old  building  passes  with  land,  20. 
TIME, 

Offer  to  stand  open  for  certain,  10. 

Result  of  not  working  out,  23. 

Important  in  fixing  liability  of  employer,  60. 
TREES, 

If  cut  down  and  left  where  they  fell,  pass,  18. 

If  standing,  pass  with  land,  18. 

If  in  the  road,  fruit  belongs  to  whom,  28. 

In  the  road,  cannot  be  cut  by  private  person,  28. 

On  railroad's  land,  belong  to  farmer,  34. 

On  which  bees  light,  who  owns  the  bees,  52. 

Limbs  overhanging  division  line  may  be  cut  off,  76. 

If  on  the  division  line  both  parties  own  it,  75. 

May  be  set  out  on  one's  own  land,  76. 
TRESPASS, 

On  land,  what  may  be,  29. 

None,  to  turn  out  upon  adjoining  land,  if  highway  is  impassable,  ?9. 

May  be  a  crime,  69. 
WAGES, 

Right  to  current  rate,  23. 

Not  forfeited  when,  24. 
WAGONS, 

Cannot  be  left  in  the  road,  28. 
WALL, 

When  boundary  line  passes  along  middle,  15. 

On  highway  must  be  placed  where,  30. 

Between  neighbors  where,  30. 
WATER, 

Rights  as  to,  64. 

Surface,  rights  as  to  different  from  running  water,  65. 

Underground,  no  ownership  in,  67. 
WATER  PIPES, 

Pass  with  house,  21. 
WAY, 

Right  of,  how  gained  by  purchase,  31. 
by  prescription,  31. 
by  necessity,  32. 


98  INDEX. 

WAY, 

Eight  of,  gained  for  particular  purpose  only,  32. 
Right  of,  to  a  back  lot,  32. 
Right  of,  by  necessity  continues  how  long,  32. 
Right  of,  may  have  gates  placed  across  it,  33. 
When  right  of  is  given,  who  must  keep  in  repair,  33. 
Must  be  located  in  a  reasonable  manner,  33. 
Only  the  right  of  belongs  to  railroads  usually,  34. 
Right  of  must  be  acquired  by  adverse  use,  (39. 

WELL, 

If  partly  in  the  road,  private  property,  29. 
If  dried  up  no  remedy  when,  67. 

WOOD, 

If  cut  and  corded  up  for  sale  does  not  pass,  18. 

Cannot  be  left  in  the  road,  30. 

If  fired  by  locomotive  spark,  who  is  responsible,  37. 

who  is  now,  37. 
If  cut  by  hired  man,  his  employer  is  responsible,  59. 

WOOD-LOTS, 

Need  not  have  a  partition  fence  between  them,  43. 

WORK, 

Sometimes  need  not  be  paid  for,  24. 
On  Sunday  is  not  extra  work,  25. 


